[00:00:00] Speaker 03:
May it please the court, Timothy Berg of Fenimore Craig on behalf of defendant's appellant.

[00:00:05] Speaker 03:
I'd like to reserve five minutes for rebuttal.

[00:00:09] Speaker 03:
This case arises from the district court's enforcement of a decree apportioning surface water rights to the Gila River against appellants who are not parties to the decree nor in privity with any party to the decree.

[00:00:21] Speaker 03:
For at least 40 years, appellants and their predecessors used wells located thousands of feet in the Gila River

[00:00:27] Speaker 03:
for domestic water and to irrigate their farms.

[00:00:30] Speaker 03:
This water was presumed to be groundwater under Arizona law.

[00:00:34] Speaker 03:
Five years ago, Appalese filed the current complaint in the District Court claiming Appellant's water was subflow of the Gila River.

[00:00:41] Speaker 03:
The District Court agreed and shut off Appellant's wells, effectively terminating their farms.

[00:00:47] Speaker 03:
The District Court erred, one, because it enforced a consent decree over a non-party and over a matter where the state

[00:00:55] Speaker 03:
general stream adjudication had prior exclusive jurisdiction.

[00:01:00] Speaker 03:
It failed to follow Arizona law on the burden of proving that a well pumps appropriate surface water instead of percolating ground water and granted summary judgment despite the existence of genuine issues of material fact.

[00:01:12] Speaker 03:
Three, it issued an injunction that exceeded

[00:01:15] Speaker 03:
They exceeded that necessary to remedy any potential appropriation of water of the Gila River and unnecessarily infringed upon appellant's right to pump groundwater.

[00:01:28] Speaker 07:
I'd like to start with the jurisdictional question.

[00:01:31] Speaker 07:
The other side, your opponents claim that the district court has exclusive jurisdiction based on the equity decree.

[00:01:39] Speaker 07:
Your position is that there is exclusive jurisdiction in the adjudication court and state court.

[00:01:45] Speaker 07:
So both of you have staked out positions that there is exclusive jurisdiction in this case.

[00:01:49] Speaker 07:
You seem to agree that there is exclusive jurisdiction.

[00:01:51] Speaker 07:
You just disagree where that courtroom is.

[00:01:54] Speaker 07:
Now, let me ask about the middle position.

[00:01:57] Speaker 07:
If I disagreed with the other side that the equity decree provided a basis for continuing exclusive federal jurisdiction, and I disagreed with you

[00:02:07] Speaker 07:
that the adjudication court had exclusive jurisdiction over all matters involving Gila River and its tributaries, is there jurisdiction in this case, federal jurisdiction?

[00:02:19] Speaker 03:
I think the answer, Your Honor, is that there would be concurrent jurisdiction.

[00:02:24] Speaker 03:
Our position is, as you noted, there's exclusive jurisdiction.

[00:02:27] Speaker 03:
But there would be, at least in theory, concurrent jurisdiction.

[00:02:34] Speaker 07:
Concurrent jurisdiction in the federal court?

[00:02:36] Speaker 03:
In the federal court and in the state court.

[00:02:38] Speaker 07:
So that would be either a 1331 or a 1362 and maybe it doesn't make any difference these days whether it's 1331 or 1362.

[00:02:47] Speaker 07:
That would be consistent with Judge Bolton's prior order.

[00:02:51] Speaker 03:
Yes, your honor.

[00:02:52] Speaker 07:
Okay.

[00:02:53] Speaker 03:
However, that ignores the fact that in 2007 an order was entered in the state court litigation and upheld by the state supreme court.

[00:03:04] Speaker 03:
And in that order to which all the parties in the adjudication including the community and the tribe are parties, the court held that as to disputes between parties who have decreed rights under the globe equity decree the federal court has jurisdiction is the forum.

[00:03:23] Speaker 03:
As to claims against nonparties, people who don't have decreed rights, the state court, the state adjudication court is the appropriate forum.

[00:03:32] Speaker 03:
And so if there is concurrent jurisdiction here, and we obviously believe we have prior exclusive jurisdiction, but if the court concludes there was concurrent jurisdiction, that 2007 judgment which binds all the parties would indicate that, at least as to claims against my clients who are nonparties to the decree,

[00:03:50] Speaker 03:
That belongs in the state adjudication court, which is the better court because of the other reasons we raised dealing with the determination of the subflow zone and the entire adjudication process.

[00:04:04] Speaker 06:
And the fact that... What claim does your client have?

[00:04:08] Speaker 06:
And I have trouble with this because subflow and groundwater and... I'm out of my element and it doesn't strike me as very scientific.

[00:04:16] Speaker 06:
Everybody seems to concede it's not scientific.

[00:04:19] Speaker 06:
So bear with me as I...

[00:04:20] Speaker 06:
try to model through it.

[00:04:22] Speaker 06:
But I don't understand how your client could have a viable claim to Gila River subflow water, particularly given the dates that the community and the tribe have dates that are certainly senior to any claim to be asserted by your client, don't they?

[00:04:41] Speaker 03:
It is our position, Your Honor, there is a genuine issue of material fact as to whether we're pumping subflow at all.

[00:04:47] Speaker 03:
Oh, I get that.

[00:04:48] Speaker 06:
Our position is we're pumping groundwater.

[00:04:50] Speaker 06:
But if you're pumping subflow and that's what the Federal Court adjudication is aimed to speak to, I understand the legal argument, but in reality, could your client have any claim

[00:05:07] Speaker 06:
to be entertained by the federal court with regard to Gila River and subflow, including subflow.

[00:05:12] Speaker 06:
I'll stop saying that from here on.

[00:05:14] Speaker 03:
Let me try to answer it a little differently.

[00:05:17] Speaker 03:
Our parties have claimed they have rights to pump groundwater.

[00:05:20] Speaker 03:
They've alternatively filed claims in state court for pumping from the Gila River.

[00:05:25] Speaker 06:
But what rights could they possibly have to Gila River, given the dates of the community and the tribes' rights?

[00:05:32] Speaker 03:
Your Honor, if you look at the Nevada cases, the Ordich and the Alpine cases,

[00:05:37] Speaker 03:
After the decrees were entered, parties were still able to assert rights to surface water.

[00:05:41] Speaker 03:
Why?

[00:05:42] Speaker 03:
Because the amount of surface water in a river varies from year to year.

[00:05:45] Speaker 03:
My clients may claim surface water rights junior to the surface water rights of the tribe and the community, and in some years that may be worth nothing, but in some years there may be enough water they have rights.

[00:05:56] Speaker 03:
But the answer is the right place to determine that is the state court general adjudication.

[00:06:00] Speaker 03:
The problem you have operating outside the adjudication is exactly what's going on here.

[00:06:05] Speaker 03:
You have two sets of people who have some set of rights to this river, but you don't have everybody who has rights to this part of the river in here.

[00:06:13] Speaker 03:
And we're attempting to allocate rights between them without having the parties in front of you.

[00:06:18] Speaker 03:
That's why Congress passed the McCarran Amendment.

[00:06:21] Speaker 03:
The idea was to say,

[00:06:24] Speaker 03:
General adjudications by state courts are the correct way to determine water rights in the west.

[00:06:29] Speaker 03:
Maybe in the east where there's plenty of water, no one cares.

[00:06:32] Speaker 03:
But here in the west, we have to adjudicate water that way.

[00:06:36] Speaker 03:
And the right way to do it is to get everybody in, give notice to everyone who could possibly have a claim, which the globe equity court didn't do, but the adjudication court did do.

[00:06:45] Speaker 06:
Well, could do, hasn't done, and appears to be many years away from actually doing with regard to these claims.

[00:06:52] Speaker 03:
It has.

[00:06:52] Speaker 03:
Pardon me, your honor.

[00:06:53] Speaker 03:
It has given notice to everyone.

[00:06:55] Speaker 03:
It has permitted people to file claims.

[00:06:58] Speaker 03:
It is working its way through the adjudication.

[00:07:01] Speaker 03:
I suggest to you that there are at times federal and state cases that take a long time.

[00:07:07] Speaker 03:
Examples I can think of in federal court would be the Pasadena School District desegregation case or the fishing rights case in Washington that Judge Bolt sat on that I think was decided back when I clerked for Judge Chambers almost 50 years ago.

[00:07:23] Speaker 03:
The fact that a case takes a long time doesn't mean someone ought to be able to go to another court and ask that court to intervene in the process of that case.

[00:07:35] Speaker 06:
I hear your argument.

[00:07:36] Speaker 06:
I also don't see the state court trying to elbow the federal court out of the way.

[00:07:40] Speaker 06:
The state court, the state supreme court seems to have recognized the federal adjudication.

[00:07:45] Speaker 06:
And we've got a practical problem here.

[00:07:47] Speaker 06:
So I hear you, but I'm not sure I'm persuaded.

[00:07:50] Speaker 03:
Well, Your Honor, you have a practical problem either way.

[00:07:53] Speaker 03:
I mean, if you uphold this injunction here, you're basically shutting these folks' wells down completely and shutting these farms down completely.

[00:08:02] Speaker 06:
There are lots of issues before we get to that point.

[00:08:05] Speaker 06:
You've been talking about the claim that the state court has prior exclusive jurisdiction and I'm not buying it.

[00:08:13] Speaker 03:
It does, Your Honor.

[00:08:14] Speaker 03:
If you read Alpine and even if you read Judge Bolton's order,

[00:08:18] Speaker 03:
What Judge Bolton says and what the Alpine Court say is that the res here is the party's claim.

[00:08:25] Speaker 06:
And I'm just suggesting that you've heard from me, you've heard a hint from Judge Bybee, and maybe there are other issues you'd like to spend your time on.

[00:08:35] Speaker 03:
Well, Your Honor, let's move to the question of whether .

[00:08:37] Speaker 03:
.

[00:08:37] Speaker 02:
.

[00:08:37] Speaker 02:
Let me ask you a question on this jurisdictional issue.

[00:08:43] Speaker 02:
Because you're arguing that the state court has exclusive jurisdiction, I'm assuming you're going to disagree with what I'm going to say next.

[00:08:49] Speaker 02:
But what if the result is that the federal court process has jurisdiction over the main stem, Gila River, and the state court adjudication process has jurisdiction over the tributaries?

[00:09:06] Speaker 03:
You're right.

[00:09:06] Speaker 03:
I do disagree with that, Your Honor.

[00:09:07] Speaker 03:
First of all, it's clear that the state court adjudication was intended to cover the entire Gila River.

[00:09:13] Speaker 03:
including the main stem and the tributary.

[00:09:15] Speaker 02:
It started in 1981?

[00:09:19] Speaker 03:
Sometime in the late 70s, I believe, Your Honor.

[00:09:21] Speaker 03:
I don't have the date right at hand.

[00:09:22] Speaker 02:
And the globe equity decree and that litigation began in 1925, the decree was entered in 1935.

[00:09:29] Speaker 03:
But it doesn't, the question of what, the question of what

[00:09:33] Speaker 03:
the state courts have to do with the globe equity rights is different than the question of whether they have jurisdiction.

[00:09:39] Speaker 03:
Under the McCarran amendments, the state's general adjudication process has jurisdiction over the claimed rights here.

[00:09:47] Speaker 03:
In fact, these folks I believe have filed claims in the state court adjudication, given parties to it.

[00:09:55] Speaker 03:
What the state is obligated to do both by state statute and I think as a matter of law,

[00:10:00] Speaker 03:
is recognize the rights that the globe equity decree gave to these folks.

[00:10:05] Speaker 03:
So the state can't say the federal district court gave you 10,000 acre feet and we're going to decide it's really 5,000 acre feet.

[00:10:12] Speaker 03:
The state court has to recognize that.

[00:10:15] Speaker 03:
But the state court under the McCarran Amendment has jurisdiction to decide my client's claims because my clients have never been a party to the globe equity decree and are pumping water thousands of feet from the Gila River

[00:10:28] Speaker 03:
and the state court has exercised jurisdiction over that claim.

[00:10:33] Speaker 03:
Even if we were in federal court, there are genuine issues of material fact that preclude summary judgment in this case.

[00:10:41] Speaker 03:
First of all, the question of what, if you look at the testimony of our expert, Dr. Lipson, what he testifies to is none of the three wells are in the saturated, people call the saturated FHA,

[00:10:58] Speaker 03:
and that none of them are pumping river water, and that, in fact, there are the presence of clay layers, which is what would keep water from the river from coming up to the well, in the wells.

[00:11:10] Speaker 03:
That is sufficient in and of itself to create a genuine issue of material fact and judge rash-aired and granting summary judgment on that basis.

[00:11:19] Speaker 02:
Didn't your expert's reports acknowledge that there was a certain percentage of water pumped into the wells that was

[00:11:27] Speaker 02:
either from the saturated FHA or from surface water?

[00:11:32] Speaker 03:
We had two different sets of experts.

[00:11:36] Speaker 03:
Dr. Lipson was the one who testified about the clay layers in the well.

[00:11:40] Speaker 03:
The CCA report said that there's some percentage on three of the four wells, not the fourth one.

[00:11:47] Speaker 03:
that may have originated in the river.

[00:11:49] Speaker 03:
But if you look at the Southwest Cotton case, which is the one that defines what subflow is, it says not all water going into or coming out of the river is subflow.

[00:11:58] Speaker 03:
Subflow and surface water is something different.

[00:12:01] Speaker 03:
Part of what comes out of the river and ends up in the groundwater aquifer isn't surface water anymore.

[00:12:08] Speaker 03:
It's not subject to a prior appropriations rights.

[00:12:10] Speaker 03:
It's not subject to decreed rights, Your Honor.

[00:12:14] Speaker 03:
Finally, I'm going to take my last couple minutes and try to save some for rebuttal.

[00:12:19] Speaker 03:
The injunction in this case is wholly overbroad and wholly inappropriate.

[00:12:25] Speaker 03:
If there is at the very least, and we contend there's a material issue of fact about whether my clients are pumping any surface water, but there's at the very least a genuine issue of material fact about whether they are pumping more than a minimum amount, a de minimis amount of river water.

[00:12:41] Speaker 03:
And what the court did here,

[00:12:43] Speaker 03:
was enter an injunction shutting the wells off completely and that's inappropriate.

[00:12:49] Speaker 03:
First of all it should have looked to Arizona state law because this is a substantive water law matter but secondly even under normal circumstances what a court should do in entering an injunction is to enter

[00:13:00] Speaker 03:
the least restrictive injunction possible.

[00:13:03] Speaker 07:
What did you suggest to the District Court?

[00:13:05] Speaker 03:
We suggested several different kinds of mitigation.

[00:13:08] Speaker 03:
We suggested that we pump some water back into the river, whatever percentage of what we were taking out.

[00:13:14] Speaker 07:
When did you suggest this to the District Court?

[00:13:17] Speaker 03:
Your Honor, I believe we suggested it at the time that the motions were argued.

[00:13:22] Speaker 03:
I wasn't the lawyer arguing that, so I can't give you a specific date.

[00:13:26] Speaker 07:
Second, I saw the mitigating suggestions in the CCA report, but the district court doesn't mention any question of mitigation.

[00:13:37] Speaker 07:
I didn't see anything.

[00:13:39] Speaker 07:
I saw an argument that it was overbroad in your opening brief, but it didn't suggest that mitigation had been recommended and rejected by the district court.

[00:13:50] Speaker 03:
Your Honor, I guess, first of all, my position would be even if we didn't specifically recommend particular types of mitigation, the district court still has an obligation not to enter an overbroad injunction.

[00:14:01] Speaker 03:
And this injunction is overbroad because it shuts off all of my client's rights entirely.

[00:14:05] Speaker 03:
There were several different kinds of mitigation.

[00:14:07] Speaker 03:
Payment, putting water back in the river, pumping less water, pumping it less frequently.

[00:14:13] Speaker 03:
All of those were possibilities that the District Court could have entertained and did not entertain.

[00:14:18] Speaker 07:
It took the position that basically... And you think that you did or did not brief those questions to the District Court?

[00:14:25] Speaker 03:
I believe they were raised with the District Court.

[00:14:27] Speaker 03:
I do not know whether they were briefed as such, Your Honor.

[00:14:33] Speaker 03:
either in the course of the argument.

[00:14:35] Speaker 03:
I don't have a specific site.

[00:14:37] Speaker 03:
Frankly, I didn't expect this question to come up, so I don't have a specific site to give you.

[00:14:40] Speaker 03:
I can get back to you after argument with a site to the record somewhere.

[00:14:45] Speaker 07:
Because this seems pretty fundamental to me.

[00:14:47] Speaker 07:
My review of the record, starting with the jurisdictional question, one of the questions that I originally started with, going to the question of the merits of summary judgment, and then finally to the question of the injunction.

[00:15:01] Speaker 07:
looks like the two parties were about as far apart as you could possibly get.

[00:15:06] Speaker 07:
This was a no-holds-barred, all-or-nothing argument on both sides.

[00:15:11] Speaker 07:
It didn't look like there was any moderate middle.

[00:15:14] Speaker 07:
And so my problem with the argument now is that it feels like it's a Johnny-come-lately.

[00:15:18] Speaker 07:
That is, now you've lost it.

[00:15:20] Speaker 07:
Well, gee, now we'd like to have mitigation.

[00:15:22] Speaker 07:
But if you didn't come before the district court, it's hard to fault the district court for not making up things that weren't presented to him.

[00:15:30] Speaker 03:
I guess, Your Honor, I would disagree with that.

[00:15:32] Speaker 03:
I think what the district court did was adopt a statement Judge Bolton made earlier, which is the remedy for mispumping is to shut the well down.

[00:15:42] Speaker 03:
I don't think the district court went beyond that.

[00:15:45] Speaker 03:
I think the district court had an obligation to look at the record in front of it and decide what the appropriate remedy would be.

[00:15:54] Speaker 03:
Certainly, I think we raised it, but even if we didn't, I think the injunctions overbroad

[00:15:59] Speaker 03:
and it was an abuse of discretion.

[00:16:01] Speaker 03:
The other thing I want to point out on the injunction is the balance of hardships.

[00:16:08] Speaker 03:
Essentially, my clients end up with their farms being shut down entirely.

[00:16:13] Speaker 03:
That's a hardship that I don't think the district court took into account at all in setting this injunction.

[00:16:20] Speaker 03:
I see I have about three and a half minutes left, and I'd like to save those for rebuttal.

[00:16:25] Speaker 02:
We'll let you save that time.

[00:16:26] Speaker 02:
But when you're scouring the record, we have the briefing before the district court.

[00:16:31] Speaker 02:
I'm not certain.

[00:16:32] Speaker 02:
I can't recall now if we have any transcripts of what happened at argument.

[00:16:35] Speaker 02:
If it's in that argument, that would be helpful to know what was said.

[00:16:39] Speaker 03:
And we will find that out.

[00:16:40] Speaker 03:
And like I say, I can't because I honestly never didn't look at that particular question and honestly wasn't the one that did the hearing.

[00:16:48] Speaker 03:
I can't tell you for sure.

[00:16:49] Speaker 03:
I will verify whether we did or not and get back to the court.

[00:16:52] Speaker 03:
Absolutely happy to do that.

[00:16:53] Speaker 02:
Thank you.

[00:16:58] Speaker 02:
All right, so Mr. Shah, I understand you're going to go for 15 minutes.

[00:17:04] Speaker 01:
Yes, Your Honor.

[00:17:05] Speaker 01:
May it please the court Pratik Shah for the Gila River Indian Community.

[00:17:09] Speaker 01:
If the 1935 Globe Equated

[00:17:11] Speaker 01:
decree means anything.

[00:17:13] Speaker 01:
The district court must be able to exercise continuing jurisdiction to enforce it against those who take Gila River main stem water without any right to do so.

[00:17:23] Speaker 01:
Under defendants view, the district court is powerless to stop even avowedly unlawful pumpers of scarce main stem water despite interfering with decree rights.

[00:17:34] Speaker 01:
Instead they say decree right holders like the Indian tribes here must go to the Gila adjudication state court for hypothetical relief that undisputedly is many years if not decades away.

[00:17:47] Speaker 01:
That eviscerates.

[00:17:48] Speaker 07:
How do you get a consent decree which is a contractual matter in which you have named parties and now you have non-mutual offensive collateral estoppel

[00:18:01] Speaker 07:
And I don't think that's a particularly viable principle of law.

[00:18:05] Speaker 01:
Sure.

[00:18:05] Speaker 01:
So your honor, water rights adjudications are unique.

[00:18:09] Speaker 01:
So if you look at the Alpine decision and the state engineer decision from this court, those are also technically in personam

[00:18:16] Speaker 01:
decrees like this one, but what this court says, it says in black and white, whether it's in personam, quasi in rem, in rem, they are in the nature of in rem proceedings and that's why the court applies that.

[00:18:29] Speaker 07:
But quasi in rem always has a limited number of folks.

[00:18:32] Speaker 07:
So whether we classify the equity decree as having been in personam or quasi in rem doesn't get to the question of in rem.

[00:18:39] Speaker 07:
And in rem must be noticed against the world, it would bind all of the predecessors,

[00:18:44] Speaker 07:
who owned this property.

[00:18:46] Speaker 07:
And they could have done that.

[00:18:47] Speaker 07:
They didn't do it.

[00:18:49] Speaker 07:
Now, what I do think that you have is that you have probably a very, very well-established water rights in the tribe.

[00:18:58] Speaker 07:
And one that surely is going to stand up is the prior appropriator.

[00:19:01] Speaker 07:
That means that the question is to who's going to have rights to the water running adjacent to the defendants' farms is not going to be a difficult question.

[00:19:13] Speaker 01:
Right, Your Honor.

[00:19:14] Speaker 01:
And there's no reason why the federal district court shouldn't have jurisdiction over that question when we're talking about the water rights.

[00:19:21] Speaker 07:
But the question of exclusive jurisdiction is a very, very powerful tool.

[00:19:25] Speaker 07:
I'm going to put the same question to you.

[00:19:29] Speaker 07:
If I don't accept your theory and I don't accept their theory, does the district court still have jurisdiction?

[00:19:36] Speaker 01:
Yes, it does.

[00:19:37] Speaker 01:
1331, 1362, it's certainly a federal question because it implicates the allocation of water rights.

[00:19:44] Speaker 01:
Could the United States have brought this

[00:19:46] Speaker 01:
Yes, United States, in fact the United States has brought a parallel.

[00:19:49] Speaker 07:
That's a very simple solution to the question of jurisdiction.

[00:19:52] Speaker 07:
The question of exclusive jurisdiction also presupposes some kind of collateral estoppel that I probably am not willing to assume.

[00:20:00] Speaker 01:
Okay, so obviously the court doesn't have to go to exclusive jurisdiction, right?

[00:20:03] Speaker 01:
The federal court clearly had jurisdiction at least under 1331, 1360.

[00:20:07] Speaker 01:
It was Judge Bolton and Judge Rash, disclaiming their argument of prior exclusive jurisdiction in the state court.

[00:20:15] Speaker 01:
And what we know at least is that has to be wrong.

[00:20:17] Speaker 01:
The federal court exercised jurisdiction over the body of water.

[00:20:20] Speaker 01:
Again, I think under Alpine and state engineers, that's exclusive, but you don't have to go that far.

[00:20:26] Speaker 01:
They at least exercised it in 1935 before the state court adjudication even existed.

[00:20:31] Speaker 01:
That wasn't until 1980.

[00:20:33] Speaker 01:
So it can't be that this

[00:20:34] Speaker 01:
prior, the state court has exclusive jurisdiction over the Gila River main stem.

[00:20:39] Speaker 01:
I think Judge Beatty, you got that.

[00:20:41] Speaker 06:
Both sides are arguing that somebody has exclusive jurisdiction.

[00:20:44] Speaker 06:
I suspect it's because of things going on beyond this case for our purposes and you seem to acknowledge the federal court had jurisdiction that may be concurrent

[00:20:55] Speaker 06:
But we don't have to resolve that.

[00:20:56] Speaker 01:
You don't have to resolve that to affirm the district court here.

[00:20:59] Speaker 01:
Because the question is whether it's jurisdiction.

[00:21:01] Speaker 01:
This came up because they made the prior exclusive jurisdiction argument in Gila adjudication.

[00:21:06] Speaker 01:
Judge Bolton rejected that in saying that, no, actually the federal court has exclusive jurisdiction.

[00:21:11] Speaker 01:
You don't have to go that far, obviously, to affirm the judgment.

[00:21:15] Speaker 01:
And Judge Beatty, you got it exactly right.

[00:21:17] Speaker 01:
There's a line to draw here between Gila main stem water and all of the other tributaries

[00:21:24] Speaker 01:
which are major rivers actually in Arizona, that the Gila adjudication has been decades, right?

[00:21:29] Speaker 01:
It's been 45 years and it's still a decade away from even getting to the area that's at issue here.

[00:21:36] Speaker 01:
Again, nobody knows that better than Judge Bolton who actually was the presiding judge of that Gila adjudication state court.

[00:21:44] Speaker 01:
It was Gila 6, the Arizona Supreme Court decision that drew that distinction between main stem federal court

[00:21:51] Speaker 01:
and other things, tributaries, other rivers in the state court.

[00:21:57] Speaker 01:
But I agree with you, Judge Bybee, Judge Clifton, all you have to decide is that the federal court had jurisdiction here and there's no, the only way they could dispute that is by saying the state court had exclusive jurisdiction and that

[00:22:09] Speaker 01:
can't be right.

[00:22:11] Speaker 01:
By the way, there is an unbroken line of precedent from this court, the Ninth Circuit, dating back to 1980 in the Smith case, where the federal court adjudicated claims exactly like this, that is, decree right holders

[00:22:26] Speaker 01:
bringing enforcement of the decree against unlawful non-decree parties for unlawful pumping of main stem waters.

[00:22:34] Speaker 01:
That's in Smith, and this court says in Smith, that's a 1980 decision, that all agreed that if in fact it was found that the non-decree party was pumping subflow, pumping main stem water, that there could be injunctive

[00:22:51] Speaker 01:
and other relief to shut it down.

[00:22:53] Speaker 01:
Then, of course, in 2007, in the resolution of the Hotlands litigation, in ratifying that settlement, you have Judge Bolton.

[00:23:02] Speaker 01:
This is at ER 2223, where the district court talks about Judge Bolton's 2007 decision.

[00:23:09] Speaker 01:
I'll just read you what she said in ratifying that settlement.

[00:23:13] Speaker 01:
addressing exactly this situation here.

[00:23:16] Speaker 01:
This is not a new problem.

[00:23:17] Speaker 01:
The federal courts have been adjudicating these for decades.

[00:23:20] Speaker 01:
She says, quote, the agreement does not in any manner modify the HILA decree, nor would it in any manner inhibit this court from enjoining well pumping

[00:23:30] Speaker 01:
if wells are determined to be pumping water in violation of the decree and this is against quote people who attempt to seek legitimate rights to Hilo water who do not seek to who do not attempt to seek legitimate rights to Hilo River water through the decree and so and that by the way that document which is cited in the district court opinion here at 22-23

[00:23:54] Speaker 01:
That document comes from the Globe Equity Litigation.

[00:23:58] Speaker 01:
It's document 6595 and it's at pages 5 to 6.

[00:24:02] Speaker 01:
It addresses exactly this scenario.

[00:24:04] Speaker 06:
So you have... Well, but it may be not because the contention of the defendants is that they're not pumping Gila River water, they're pumping groundwater.

[00:24:15] Speaker 06:
And so I understand what you're saying with regard to the extent of the decree's impact with regard to Gila River water.

[00:24:23] Speaker 06:
The issue we have here is, in fact, is that going on?

[00:24:26] Speaker 01:
Right.

[00:24:27] Speaker 01:
I'm just talking about the jurisdiction, right?

[00:24:28] Speaker 01:
The allegation is that they're pumping, and then the question is whether they are.

[00:24:32] Speaker 01:
So that's the Smith in 1980 from this court.

[00:24:35] Speaker 01:
It's Judge Bolton's from 2007.

[00:24:37] Speaker 01:
Then you have a decision from 2009 in this court.

[00:24:40] Speaker 01:
This is the GVID decision cited in our introduction and at various places in our brief.

[00:24:45] Speaker 01:
And at 284, here's what this court says.

[00:24:47] Speaker 01:
The district court retains jurisdiction to, quote,

[00:24:50] Speaker 01:
protect the rights of all parties to the decree against landowners without rights under the decree who operate wells in violation of the decree."

[00:24:59] Speaker 01:
And it cites this 2007 Bolton order that I just gave you.

[00:25:03] Speaker 07:
I don't take that as granting exclusive jurisdiction.

[00:25:08] Speaker 07:
No.

[00:25:09] Speaker 07:
but as honoring a judgment about prior appropriation by the tribe, which ought to be perfectly good, in which I don't understand anybody who was involved in that litigation or in this litigation to claim that they have superior appropriation rights.

[00:25:24] Speaker 01:
And Your Honor, I'm kind of accepting your premise, right?

[00:25:27] Speaker 01:
It doesn't have to be exclusive.

[00:25:28] Speaker 01:
These are comments.

[00:25:30] Speaker 01:
What we do know for sure is this Court is opining that the District Court

[00:25:33] Speaker 01:
does have jurisdiction to enforce the decree, putting aside whether the state court could also do it.

[00:25:39] Speaker 01:
And so all of these things that I've read you, I think unbroken lines since 1980 till now, all of these have always been litigated in federal court.

[00:25:48] Speaker 01:
We know that it's been endorsed by Judge Bolton, endorsed by this circuit.

[00:25:52] Speaker 01:
You don't have to go so far if you're not comfortable to say it can only be in federal court, but certainly that's basis to affirm

[00:25:59] Speaker 01:
the judgment here.

[00:26:00] Speaker 01:
If I can pivot to the merits, Judge Clifton, about whether they're actually pumping subflow or not, there was an extensive record here.

[00:26:08] Speaker 01:
I want to point to two pieces of evidence that the district court in particular relied on.

[00:26:13] Speaker 01:
That evidence, just to show there's no material dispute of fact, it comes from their side's experts to simplify this.

[00:26:19] Speaker 06:
Well, let me, because the time is going by, let me make clear.

[00:26:23] Speaker 06:
I've got serious concerns.

[00:26:25] Speaker 06:
as to two things.

[00:26:27] Speaker 06:
Let me identify them and you can speak to them.

[00:26:29] Speaker 06:
One is whether in fact there is a basis for summary judgment because there's a lack of genuine dispute of material fact.

[00:26:39] Speaker 06:
It seems to me as I read this, this sure didn't look much like a summary judgment case to me.

[00:26:44] Speaker 06:
And our review at this point is de novo.

[00:26:46] Speaker 06:
Yes.

[00:26:47] Speaker 06:
And I'm not sure that

[00:26:50] Speaker 06:
The district court's analysis of the evidence is something that would necessarily have to be accepted by any reasonable fact finder.

[00:26:56] Speaker 06:
So that's one concern.

[00:26:57] Speaker 06:
And the second particular concern is the utilization by the district court of what I'll call the Judge Ballinger Assumption which as I understand it, the state adjudication court used that to determine jurisdiction as to whether

[00:27:14] Speaker 06:
This particular court, which is actually Maricopa County Court extending outside of Maricopa County, the jurisdiction of that court is a very preliminary decision.

[00:27:23] Speaker 06:
And I see nothing that supports applying that assumption, the reasonableness I get, but nothing applies that as a rule of decision for the merits.

[00:27:34] Speaker 06:
And so, the assumption that's been applied here

[00:27:38] Speaker 06:
taken from the state court for jurisdictional purposes, applied here as a merits rule of decision, I don't see the support for that and don't understand how the district court can justify its decision on that basis.

[00:27:49] Speaker 06:
So those are my concerns.

[00:27:51] Speaker 06:
Speak to it.

[00:27:51] Speaker 01:
Yes.

[00:27:52] Speaker 01:
Let me start with the first one, which is the evidence.

[00:27:54] Speaker 01:
I know, obviously, this is a technical subject matter.

[00:27:57] Speaker 01:
There is a lot of evidence thrown at you.

[00:27:58] Speaker 01:
But the district court cut through that by taking their own expert's evidence, which is why there's not a material dispute.

[00:28:05] Speaker 01:
It could be called cherry picking.

[00:28:06] Speaker 01:
Well, it's cherry picking using their evidence, but let me point you to it so we're not talking in abstract terms.

[00:28:12] Speaker 01:
ER 382, my friend on the other side said the CCA expert report, this is their expert report, he said it said it may not have, some of the water may have originated from the Gila River.

[00:28:24] Speaker 01:
That's not what the expert report says.

[00:28:26] Speaker 01:
Here's, and I'll quote it to you, ER 382, it says,

[00:28:31] Speaker 01:
The sources of water were tagged with a numerical value in the model to determine the percentage of water that was reaching the well directly from the Gila River.

[00:28:41] Speaker 01:
And it found there were certain percentages of water reaching, being pumped by the wells, quote again, directly from the Gila River.

[00:28:50] Speaker 06:
Well, that's, that's the result of what I understand barely to be a hundred year modeling, not a study of the actual locations.

[00:28:58] Speaker 06:
That's what I understood the CCA report to be.

[00:29:01] Speaker 06:
Now, can you point me to something that says CCA was actually analyzing specific conditions at each site?

[00:29:07] Speaker 01:
Well, Your Honor, they created this model to model the wells at issue, the four models, and that's why they came up with different percentages of how much water was coming directly from the Gila River for those wells.

[00:29:19] Speaker 01:
I mean, that's why they hired the experts to show how much water was coming.

[00:29:23] Speaker 01:
Their strategy was show it's only a small percentage

[00:29:26] Speaker 01:
and then propose mitigation in that expert report, which they do at ER 382.

[00:29:32] Speaker 01:
It wasn't an alternative.

[00:29:33] Speaker 06:
Dr. Lipson, the hydrologist, at least said he studied conditions at each location and came up with different conclusions, and at least one of the CCA analyses suggested that there was a well where the figure was zero.

[00:29:48] Speaker 06:
Right.

[00:29:48] Speaker 06:
So how do we get summary judgment out of this?

[00:29:51] Speaker 01:
So for the three wells, Your Honor, this CCA report, their own experts say it is pumping some amount directly.

[00:29:58] Speaker 06:
I don't read it that way, but you can so argue.

[00:30:00] Speaker 01:
Okay.

[00:30:01] Speaker 01:
That's the three wells.

[00:30:02] Speaker 01:
The fourth well, there's a second piece of evidence that the district court relied on, and this is at ER 861.

[00:30:08] Speaker 01:
This is again from Bartlett, one of their experts, who says sextant.

[00:30:13] Speaker 01:
So the first three wells in that CCA report are Shubrook, Sexton 1, and Sexton 2.

[00:30:18] Speaker 01:
The second piece of evidence covers Sexton wells 1 through 3.

[00:30:23] Speaker 01:
So between those two pieces, that's all four wells at issue.

[00:30:27] Speaker 01:
What that says at ER 861 is it says sextant wells 1 through 3, it agrees all of them lie within the FHA.

[00:30:37] Speaker 01:
And that is the zone, the subflow zone of presumptive pumping of subflow.

[00:30:44] Speaker 01:
So you have their expert at 861, which they don't dispute on appeal, admits that those three wells lie within the FHA.

[00:30:52] Speaker 01:
And they contrast that with the fourth one.

[00:30:54] Speaker 06:
Again, my whole of the science is really tentative.

[00:30:56] Speaker 06:
My understanding is that if it's within the FHA and it's determined to be saturated, that's one thing.

[00:31:04] Speaker 06:
I did happen to look at this and I didn't see it.

[00:31:08] Speaker 01:
Yes, so the saturation point comes up because that is a presumption that the Arizona Supreme Court in Arizona 4 said, okay, you have the FHA.

[00:31:18] Speaker 01:
As you said, the saturated FHA is going to be the subflow zone.

[00:31:22] Speaker 01:
It has now been years where the Arizona adjudication court and no one has appealed this to the Arizona Supreme Court even though they have the right to do so from the adjudication court.

[00:31:32] Speaker 01:
They have been applying the saturation presumption that ADWR

[00:31:38] Speaker 01:
The state agency that they want to defer to has suggested, and that's because it's impossible.

[00:31:43] Speaker 01:
You couldn't do an actual analysis at any time because the water table changes, the amount of water at any given time might change based on the amount of pumping.

[00:31:54] Speaker 01:
And so there has to be, to make this test workable,

[00:31:57] Speaker 01:
There has to be a presumption of saturation and then it's up to the other side, here the defendants, to show that there is some impermeable layer that prevents the pumping.

[00:32:08] Speaker 01:
They did not come close to that in the record here and the district court marches through that evidence at ER 46 through 48 to show there was no impermeable layer.

[00:32:20] Speaker 01:
The best they can come up with is Lipson, the expert that you reference says, I looked at the drill logs and there's references to clay.

[00:32:27] Speaker 01:
Well, there is, of course, clay in the FHA alluvium.

[00:32:29] Speaker 01:
Alluvium is built with all sorts of materials.

[00:32:32] Speaker 01:
The question is, is it an impermeable layer that prevents pumping?

[00:32:36] Speaker 01:
That's their burden to do once you show it's within the FHA subflow zone.

[00:32:41] Speaker 06:
It's their burden once the plaintiff is established by clear and convincing evidence that more than drowned water is being drawn.

[00:32:48] Speaker 06:
The district court appeared to check off that box by applying the assumption that Judge Ballinger used as a question of jurisdiction.

[00:32:56] Speaker 06:
That's the second problem I raised, and I haven't heard an answer.

[00:33:00] Speaker 01:
You're right.

[00:33:00] Speaker 01:
If burden shifts in the saturation presumption, and this is where let me try to be direct in answering the saturation presumption.

[00:33:08] Speaker 01:
That comes from ADWR in the Gila adjudication.

[00:33:12] Speaker 01:
The Gila adjudication has been applying that saturation presumption.

[00:33:17] Speaker 01:
That's accepted Arizona law.

[00:33:19] Speaker 01:
Now, it has not been appealed to the Arizona Supreme Court.

[00:33:23] Speaker 01:
It's not just Ballinger.

[00:33:25] Speaker 01:
It's been applied in the Verde, I think the San Pedro, the other tributaries.

[00:33:30] Speaker 01:
It's been applied.

[00:33:31] Speaker 01:
That's the presumption.

[00:33:32] Speaker 01:
And the reason is,

[00:33:33] Speaker 01:
that's explained there is because there's no other way to analyze it because the water level changes from time to time.

[00:33:41] Speaker 01:
It might be saturated at any given moment but not at the other and that's why there's this saturation presumption because otherwise a court couldn't actually determine.

[00:33:51] Speaker 01:
for each respective site, whether it's within the subflow zone or not.

[00:33:57] Speaker 01:
So the ADWR set is once you have an agreed upon FHA, that is assumed to be saturated, burden shifts to the

[00:34:06] Speaker 01:
to the claimants to show that there is an, and this is straight from Gila 4, quote, all wells located in the lateral limits, this is an Arizona Supreme Court decision, of the FHA subflow zone are covered unless well owners prove that perforations are below an impervious formation which precludes drawdown

[00:34:27] Speaker 01:
from the floodplain alluvium.

[00:34:29] Speaker 01:
That's at Gila 4, 1076.

[00:34:31] Speaker 01:
They haven't shown that impervious formation.

[00:34:34] Speaker 01:
And again, this is all the sites.

[00:34:36] Speaker 01:
I know it's complicated, but it's worked out at ER 46, 48.

[00:34:39] Speaker 01:
The best they can do, that wasn't their focus in the district court.

[00:34:44] Speaker 01:
That's why they don't

[00:34:45] Speaker 01:
have evidence of that nature that walks through and shows that there is an impervious layer.

[00:34:51] Speaker 01:
They just haven't met that.

[00:34:52] Speaker 01:
You can ask them what's their best evidence for an impervious layer.

[00:34:55] Speaker 01:
It's not.

[00:34:56] Speaker 01:
They have well logs, drill logs that say maybe there is a clay layer here.

[00:35:00] Speaker 01:
nothing that shows that a jury could, or not a jury, but the fact finder after trial could rely on.

[00:35:06] Speaker 01:
And so if you just look, as the district court did, at their own expert evidence, I don't think you could find a triable issue of fact when as to three of the wells, their experts say it directly pumps from the Gila River, and then as to the fourth well, you have their expert saying it's within the lateral limits of the FHA, which then pushes the

[00:35:27] Speaker 01:
the burden to the other side.

[00:35:31] Speaker 01:
I know I'm past my time.

[00:35:32] Speaker 01:
Can I address remedy?

[00:35:33] Speaker 07:
I would like you to address the injunction, the question of over-breath.

[00:35:36] Speaker 01:
Yes, so that was the argument they raised, Judge Bybee, at the remedial stage, that it was over-broad.

[00:35:43] Speaker 01:
If you look at their opening appeal brief, they raised the same argument.

[00:35:46] Speaker 01:
The word mitigation doesn't appear in their opening appeal brief in the remedy section.

[00:35:51] Speaker 01:
But they are certainly related.

[00:35:52] Speaker 01:
Yeah, they're certainly related, but just to answer your question, my understanding is that they did not argue mitigation when it came to the scope of the relief, just that it was an over-broad remedy.

[00:36:04] Speaker 01:
So they didn't argue these specific things here.

[00:36:07] Speaker 01:
There was a motion for reconsideration filed in which they sought, for example, relief

[00:36:13] Speaker 01:
so that they could continue to pump for domestic purposes.

[00:36:17] Speaker 01:
And the district court, and we cite the portion of the opinion in our brief in a footnote, says that is forfeited because they didn't raise that argument during the actual proceedings.

[00:36:29] Speaker 01:
And you can't raise new arguments in a motion for reconsideration.

[00:36:34] Speaker 01:
The last thing I'll say about this is that we're under an abuse of discretion standard when it comes to remedy.

[00:36:39] Speaker 07:
The historic remedy for… Counsel, it's just breathtaking, though, that the expert came, that the judge cited Judge Bolton's dicta that the remedy is shut down in a different circumstance.

[00:36:55] Speaker 07:
It's a very broad statement.

[00:36:57] Speaker 07:
It doesn't feel like a good salutary principle of law, and we've got, you know,

[00:37:04] Speaker 07:
0.56 on the Shoebrook.

[00:37:06] Speaker 01:
0.56 percent.

[00:37:07] Speaker 01:
Your Honor, that's, again, the district court didn't resolve the percentages.

[00:37:11] Speaker 01:
It's just that it was pumping.

[00:37:12] Speaker 01:
Obviously, our view is... Well, right.

[00:37:14] Speaker 07:
But either we take the CAA report or we don't take it seriously.

[00:37:19] Speaker 07:
You can't take it seriously for some purposes, not for others.

[00:37:21] Speaker 01:
Sure.

[00:37:21] Speaker 01:
If you want to accept the percentages there, which we accepted for... We don't have anything over 2.5 percent, any well.

[00:37:28] Speaker 01:
Right.

[00:37:28] Speaker 01:
But if they had proposed an alternative remedy that would have allowed stopping of the

[00:37:33] Speaker 01:
of the subflow, they don't have an alternative remedy that would stop the illegal taking of main stem water.

[00:37:41] Speaker 01:
And that is why the judge ordered the only remedy that would cure the violation.

[00:37:45] Speaker 01:
Well, there were things offered in the CCA report.

[00:37:48] Speaker 01:
That's the 382.

[00:37:49] Speaker 01:
And that wouldn't have stopped the unlawful pumping.

[00:37:52] Speaker 01:
If you look at the mitigation steps, again, these weren't argued, to my understanding, to the district court, but what they're talking about is pump less

[00:38:00] Speaker 07:
They did propose returning water to the river.

[00:38:04] Speaker 01:
They did.

[00:38:04] Speaker 01:
The problem with returning, as we say in our brief, is that it changes the hydrology.

[00:38:11] Speaker 01:
It's not that you can just take water out and then pump it back in.

[00:38:14] Speaker 01:
That changes the dynamics and flow of the river.

[00:38:17] Speaker 01:
It degrades the quality of the water that's reaching the tribes, the senior users.

[00:38:22] Speaker 01:
The tribes are all downstream.

[00:38:24] Speaker 01:
That's briefed.

[00:38:25] Speaker 01:
They don't have a response to that.

[00:38:27] Speaker 01:
They didn't raise that on appeal.

[00:38:29] Speaker 01:
And so there isn't more extensive briefing on that.

[00:38:32] Speaker 01:
But that's how the remedy played out as we understand it, Your Honor.

[00:38:35] Speaker 06:
We're taking over time, but we're allowed to do that.

[00:38:38] Speaker 06:
Sure, Your Honor.

[00:38:39] Speaker 06:
Maybe you can get paid extra for it.

[00:38:40] Speaker 06:
I don't know.

[00:38:42] Speaker 06:
I guess I share Judge Bybee's concern.

[00:38:45] Speaker 06:
Why is it all or nothing?

[00:38:46] Speaker 06:
I mean, courts are frequently dealing with situations where we can't return people to the place they've been before.

[00:38:55] Speaker 06:
We deal with that in other ways.

[00:38:56] Speaker 06:
Money winds up using being the cure frequently.

[00:39:00] Speaker 06:
But even I think about a house 29 years ago and it turned out the new surveyor said the old surveyor line was wrong and the carport roof stuck over by 3 inches and the automatic remedy isn't let's tear down everything that might cross the line.

[00:39:16] Speaker 06:
And given the percentage we're dealing with here, it just seems hard for me to understand that there's not a

[00:39:24] Speaker 06:
more practical resolution than the one that the district court has opposed.

[00:39:28] Speaker 01:
Again, Your Honor, there wasn't a basis given to the district court to come up with a solution that would actually remedy the harm.

[00:39:34] Speaker 01:
The remedy, the harm is that they're pumping Gila River.

[00:39:36] Speaker 01:
And remember, I know Judge Bybee is saying the CCA report, which we rely on, but their expert for the other three wells agreed they all lie in the FHA.

[00:39:47] Speaker 01:
The presumption is if you're within the FHA, it's 100% that you're putting subflow.

[00:39:51] Speaker 06:
See, I got a real problem with that because some of these wells are thousands of feet away.

[00:39:55] Speaker 06:
Well, Your Honor.

[00:39:56] Speaker 06:
And the subflow was supposed to be originally, as I understood it, in trying to read the Arizona decisions, basically kind of

[00:40:02] Speaker 06:
right under the bed of the river.

[00:40:04] Speaker 01:
So, Your Honor, that's HILA 2.

[00:40:06] Speaker 01:
The Arizona Supreme Court came back in HILA 4 and said, no, we're not going to limit that.

[00:40:11] Speaker 01:
We're going to make it the FHA.

[00:40:13] Speaker 01:
The FHA could be much broader than just what's right under the river.

[00:40:17] Speaker 01:
There was years of litigation, Your Honor.

[00:40:20] Speaker 01:
It culminated in the Arizona Supreme Court's opinion in HILA 4, and they explain why the FHA

[00:40:28] Speaker 01:
which may seem much broader than what the Arizona court previously said in HILA 2 is the answer for the subflow zone.

[00:40:35] Speaker 01:
And so I'm not saying this to argue with you about what the exact percentages.

[00:40:40] Speaker 01:
My point is under the Arizona Supreme Court's view of it, the presumption is 100%.

[00:40:46] Speaker 01:
of the water is coming from subflow for the three wells that lie within the FHA.

[00:40:50] Speaker 06:
Well, it's the same decision that says the burden is on the plaintiff to show by clear and convincing evidence that it wasn't just groundwater.

[00:40:58] Speaker 01:
Right, and the way they show that is to lie within the FHA, and both sides agree that three of the wells, the three sexton wells, lie within the lateral limits of the FHA.

[00:41:10] Speaker 01:
There is no dispute about that between either side on appeal or in the district court

[00:41:16] Speaker 01:
ER 861.

[00:41:17] Speaker 01:
So under the Arizona Supreme Court's holding under HILA 4, for those three wells, Shubrook, I agree.

[00:41:24] Speaker 01:
They disagree that that's within the FHA, so we have to rely on the CCA report, that first piece of evidence for Shubrook.

[00:41:30] Speaker 01:
But for Sexton, it should be easy.

[00:41:34] Speaker 01:
For the three Sexton wells.

[00:41:37] Speaker 06:
Even for the one where CCA, which you rely upon, says zero.

[00:41:42] Speaker 06:
There is some picking and choosing here.

[00:41:45] Speaker 01:
Well, Your Honor, it's their expert evidence, right?

[00:41:49] Speaker 06:
And it's summary judgment.

[00:41:51] Speaker 06:
You have to establish that there's no genuine dispute of fact.

[00:41:56] Speaker 06:
And if you're picking and choosing what evidence to rely upon,

[00:42:00] Speaker 01:
Well, Your Honor, I guess my response to that is, the presumptive way the Arizona Supreme Court has said is, does it lie within the lateral limits of the FHA?

[00:42:12] Speaker 01:
Their expert, the only expert who opined on whether these lie within the lateral limits of the FHA, Bartlett said, for the three sexton wells, they lie within.

[00:42:22] Speaker 01:
That's the starting point.

[00:42:23] Speaker 01:
I know I addressed him in.

[00:42:24] Speaker 06:
And you relied upon CCA, which says zero for well three.

[00:42:29] Speaker 06:
Yes.

[00:42:30] Speaker 06:
Why can't that be argued to be rebuttable?

[00:42:32] Speaker 01:
Well, because the Arizona Supreme Court doesn't provide that as a method.

[00:42:36] Speaker 01:
They made that method up, Your Honor, right?

[00:42:39] Speaker 01:
As a presumption.

[00:42:41] Speaker 06:
Well, if it's a presumption, it is potentially rebuttable.

[00:42:43] Speaker 01:
Right, but rebuttable.

[00:42:44] Speaker 06:
That suggests that there may be a genuine issue of material fact that the CCA report, which you're relying upon for wealth for, the other one I can't pronounce.

[00:42:52] Speaker 01:
The Schubrack.

[00:42:52] Speaker 01:
Yeah, Schubrack.

[00:42:53] Speaker 06:
that if you're relying upon for that, why can't defendants rely upon that same report to say zero for well number three?

[00:43:00] Speaker 01:
Sure, because the way to rebut the presumption is to show an impervious formation.

[00:43:06] Speaker 01:
That is how the Arizona Supreme Court says you rebut the presumption.

[00:43:10] Speaker 01:
And they have not shown an impervious formation.

[00:43:12] Speaker 01:
Again,

[00:43:13] Speaker 01:
This is the evidence that I mentioned earlier, ER 46 to 48, where the district court carefully goes through all the Lipson testimony on clay and all of that.

[00:43:22] Speaker 01:
And there are well logs that show some clay, nothing approaching the sort of impervious layer that Gila IV said you have to show to rebut the presumption.

[00:43:34] Speaker 01:
I know I am above my time if there are no further questions.

[00:43:37] Speaker 01:
It's our responsibility.

[00:43:39] Speaker 01:
Yes.

[00:43:39] Speaker 01:
Happy to answer other questions.

[00:43:43] Speaker 01:
if there are.

[00:43:44] Speaker 02:
All right, thank you.

[00:43:45] Speaker 01:
Thank you, Your Honors.

[00:43:57] Speaker 04:
Good morning, Your Honor.

[00:43:59] Speaker 04:
May it please the Court.

[00:44:00] Speaker 04:
My name is Joe Sparks.

[00:44:02] Speaker 04:
I represent the San Carlos Apache Tribe.

[00:44:05] Speaker 04:
And in the courtroom today are members of the Tribal Council, the Vice Chairman, and Alex Ritchie,

[00:44:14] Speaker 04:
Attorney General for the San Carlos Apache Tribe.

[00:44:16] Speaker 04:
Just one note on history, Your Honor.

[00:44:19] Speaker 04:
This decree is now 90 years old and it's been operated and managed under a decree for 90 years.

[00:44:27] Speaker 04:
The court has a jurisdiction under the decree expressly.

[00:44:33] Speaker 04:
As the court looks to this, as this court looks at the decree, it began 100 years ago.

[00:44:40] Speaker 04:
The only people in this courtroom is 200 years old.

[00:44:42] Speaker 04:
I'm the only one.

[00:44:44] Speaker 04:
That's 100 years old here.

[00:44:45] Speaker 04:
So I'm not saying I was there when it happened, but close to it.

[00:44:51] Speaker 04:
The St.

[00:44:51] Speaker 04:
Charles Apache Tribe is a federally recognized Indian Tribe under the 1934 Indian Reorganization Act and under the Apache Treaty of 1852.

[00:45:00] Speaker 04:
The action was brought in federal court in equity, your honor, your honors, because at that time in 1925 and 35,

[00:45:12] Speaker 04:
the federal courts of equity were separate from the courts of law.

[00:45:17] Speaker 04:
So it was initiated in equity and in rim, in fact.

[00:45:22] Speaker 04:
And so that's the way it was argued, planned, and decreed.

[00:45:26] Speaker 04:
The decree is very, very expressed.

[00:45:29] Speaker 04:
It's explicit.

[00:45:30] Speaker 04:
It talks about the waters of the Gila River with an S and the underground waters of the Gila River as expressly.

[00:45:39] Speaker 04:
And the decree is structured so specifically

[00:45:42] Speaker 04:
as to say who can take water from the underground waters of the Gila River and everyone else cannot.

[00:45:51] Speaker 04:
In fact, it says where every holder of a right in the case or under the decree can take their water and no other place and no other rate and no other time except under their priority.

[00:46:05] Speaker 04:
Now that has been a difficult thing for the two tribes because neither one were parties to the decree

[00:46:11] Speaker 04:
to in the court.

[00:46:12] Speaker 04:
They were not allowed to appear in court.

[00:46:15] Speaker 04:
They did not get to argue in court or testify in court.

[00:46:18] Speaker 04:
The trustee brought this case for them to preserve their federally reserved water rights among other theories that were before the court in 1935.

[00:46:28] Speaker 04:
However, what has happened here is that the waters of the Gila River began in New Mexico and this decree, whatever you decide,

[00:46:39] Speaker 04:
and however it is administered in the future, must be adjudicated and enforced in New Mexico and Arizona because it starts in New Mexico and this court, the trial court, federal district court, enforces this decree in New Mexico and Arizona.

[00:46:59] Speaker 04:
So the rules that we need to follow have to be at least manageable under both systems.

[00:47:08] Speaker 04:
like to say is that although the two tribes got not what they really deserved under the best days of the early Americans in the west, they got what they have.

[00:47:21] Speaker 04:
And we've been told by this court that what you got is all you're going to get, but it is all you're going to get.

[00:47:29] Speaker 04:
And for San Carlos with more than 2 million acres of land and more than 40 miles of the river running through it,

[00:47:37] Speaker 04:
It got 6,000 acre feet of water with a priority date of 1846 and a diversion rate of 12 and a half cubic feet per second.

[00:47:47] Speaker 04:
It in the entirety of the decree has never received the water in the quality, time and locations that would allow it to divert it successfully and to grow crops of value under the decree.

[00:48:01] Speaker 04:
Now, the problem here then is that,

[00:48:05] Speaker 04:
The court expressly reserved its jurisdiction to enforce the decree under Article 12 and 13 of the decree.

[00:48:15] Speaker 04:
And it expressly established a water commissioner and the water commissioner, the court has a staff, a water commissioner with full-time employees, full-time lawyers or lawyer at least.

[00:48:30] Speaker 04:
And I was one of those lawyers way back in the 1969 set.

[00:48:35] Speaker 04:
70, 71, and 2.

[00:48:37] Speaker 04:
I was one of those lawyers.

[00:48:39] Speaker 04:
And so, I understand how the difficulty is and they administer this decree 24 hours a day, even under the criticism from most of the parties, most of the time, because everybody wants more water than is available to them.

[00:48:55] Speaker 04:
But it is very interesting that where there is a right to take water from the underground sources,

[00:49:02] Speaker 04:
It is expressly set out in the decree.

[00:49:05] Speaker 04:
And you can see that in Articles 8 and 9 of the decree for what was an early underground waters of the Gila River below Coolidge Dam.

[00:49:18] Speaker 04:
Now, it's odd that these two tribes come to you from earlier jurisdictions under Spain and then Mexico and then under the laws of the United States for our

[00:49:32] Speaker 04:
for territories.

[00:49:33] Speaker 04:
And the Gila River was the dividing point in a dispute between Spain and the Eastern American governments at that time.

[00:49:43] Speaker 04:
And both reservations straddle now the Gila River.

[00:49:50] Speaker 04:
And both reservations have earlier rights than any of the claimants here or anyone else under the decree.

[00:49:57] Speaker 04:
So when we get to the point where

[00:50:00] Speaker 04:
The Arizona's, I mean the U.S.

[00:50:05] Speaker 04:
Supreme Court in Arizona versus California took a look at the Gila Basin in Arizona as one of the issues among this lower basin states to be adjudicated and found that the Gila River was so over appropriated by the Globe Equity Decree and by other takers of the decrees on the tributaries which some of which originated in Mexico.

[00:50:29] Speaker 04:
that it was not going to adjudicate that in Arizona versus California.

[00:50:35] Speaker 04:
Those who asked or inquired about it were told in 1963 in Judge Rivkett's discussion that you're going to have to go to the court that has jurisdiction over that, the mainstream of the Gila River.

[00:50:48] Speaker 04:
It's the mainstream of the Gila River and its waters and the underground waters of the degree.

[00:50:57] Speaker 04:
The appellants talked to us about this.

[00:50:59] Speaker 04:
Everybody, nobody in Arizona has enough water except in certain country club swimming pools, seems like they have enough.

[00:51:08] Speaker 04:
But we don't have enough in San Carlos and we never get the water right that we have.

[00:51:13] Speaker 04:
And one of the reasons is because it is pumped until it caves in.

[00:51:18] Speaker 04:
I'm a country boy from Missouri and Mississippi River, so it's hard to think about the Yellow River as a river, as a big river.

[00:51:27] Speaker 04:
international in scope, interstate in scope.

[00:51:30] Speaker 04:
And the bottom line here is that it was over appropriated.

[00:51:34] Speaker 04:
There's no more to be had.

[00:51:36] Speaker 04:
And the appellants have other remedies about water.

[00:51:40] Speaker 04:
They can haul the water for their horses and they can haul water for the gardens and things like that in tankers.

[00:51:47] Speaker 04:
That's what I do.

[00:51:49] Speaker 04:
I have, I haul water to my water tank.

[00:51:53] Speaker 04:
There's just not enough water everywhere and there won't or,

[00:51:56] Speaker 04:
If you don't have a municipal supply or an early appropriate right, then you don't have it.

[00:52:02] Speaker 04:
I would like to speak one moment about the remedy.

[00:52:06] Speaker 04:
The remedy for these folks, if they wanted to continue their well instead of doing the Joe Sparks approach, haul it in its water tank, would be to acquire a adjudicated right from a specific landholder

[00:52:26] Speaker 04:
under the decree and moved the court to sever and transfer that right to their wells.

[00:52:32] Speaker 04:
And that's what Judge Kuhnauer explained in 1992 and later in 1996.

[00:52:41] Speaker 04:
He adopted rules for that process, the severance and transfer of water rights and decreed water rights under the decree.

[00:52:48] Speaker 04:
And it is being followed now in multiple dozens of cases that we are adjudicating and have worked with

[00:52:56] Speaker 04:
other parties, adverse parties in the decree to get done.

[00:52:59] Speaker 04:
So under the decree, there are different measures that they can take other than pumping more water and giving some of it back.

[00:53:07] Speaker 04:
It's sort of like just taking a little bit of money out of your bank account by somebody and vessel that say, well, I'll give you back the interest.

[00:53:15] Speaker 04:
How about that?

[00:53:16] Speaker 04:
And that's not the way the river works.

[00:53:20] Speaker 04:
Rivers flow from the bottom up.

[00:53:23] Speaker 04:
If they have no base flow,

[00:53:26] Speaker 04:
when there's a precipitation event, the water flows into the subsoils of the river and surrounding the river until it is saturated to the point that it can maintain flow that you can see above the bed of the river.

[00:53:43] Speaker 04:
And when the river is dry or nearly dry as it has now been for nearly 10 months in Arizona, it flows at very low rates and unfortunately,

[00:53:55] Speaker 04:
substantial amount of that flow is from sewer discharge from the upper valley communities upstream from San Carlos.

[00:54:05] Speaker 04:
It's unfortunate that's the case but however, the flow that is not from those discharges is from the subflow of the river and the banks of the river discharging back into the river so that it has enough hydrologic support to

[00:54:23] Speaker 04:
to support the surface flow for those who can only take from the surface, which is by far an enormous majority of the parties in the decree.

[00:54:33] Speaker 04:
We looked at the original jurisdiction and the interim jurisdiction carefully and the district court judge looked at it as well.

[00:54:45] Speaker 04:
The decree is so comprehensive, the resource is so over appropriated, there's no way

[00:54:52] Speaker 04:
for somebody to get a new right out of the river by any means whatsoever except by purchase of an existing and the earliest rights you can purchase and hope that the river comes to you when it's time for you to use it because most of us and the Apache tribe is one, has to take its water as it flows by.

[00:55:14] Speaker 04:
The tribe's right to take water is from the natural flow of the river.

[00:55:19] Speaker 04:
And Judge Cunhares mentioned in one

[00:55:22] Speaker 04:
in his 1996 order establishing a water quality injunction for the benefit of the tribe that at that point, most of the flow was agricultural drain, drain water.

[00:55:40] Speaker 04:
It was not natural flow.

[00:55:41] Speaker 04:
The tribe hopes and asks this court

[00:55:45] Speaker 04:
to enforce the remedy so that natural flow can appear in the stream and so that it can divert its natural flow according to its right.

[00:55:56] Speaker 04:
The tribe absolutely for 90 years has obeyed this decree and for 90 years it has been abused by not being able to get the water as it's supposed to get in its order of priority.

[00:56:10] Speaker 04:
The unfortunate part of this is

[00:56:12] Speaker 04:
The old joke in Arizona about it's better to be upstream with a shovel than downstream with a right reflects the same thing with a well.

[00:56:20] Speaker 04:
And I understand the court's interest in the science of this river and the science of what's called subflow.

[00:56:28] Speaker 04:
And this court mentioned that reference in US versus Jay Smith in 1980.

[00:56:38] Speaker 04:
And footnote three, it talked, this court mentioned,

[00:56:41] Speaker 04:
and denying the appeal of the United States in that case, I said, you know, bring us a case where there's somebody pumping water from the waters of the Gila River base and bring the science with it to support it so that we will look at that and enforce it if it is the waters of the Gila River and its underground waters.

[00:57:06] Speaker 04:
So in that case,

[00:57:08] Speaker 04:
The court has been observing that and each of the trial courts and I've known all of them since 1961, Judge Wallace, Judge Kuhnauer for a while and Judge Bolton and now the lower court judge, Judge Rash.

[00:57:32] Speaker 04:
They have all struggled with this question.

[00:57:36] Speaker 04:
And it is science that must prevail here, Your Honors.

[00:57:41] Speaker 04:
It is long since passed when we can make believe that everything's going to be all right if you just get along.

[00:57:48] Speaker 04:
We can't just get along here because it's perish if you don't have water to support your tribal or human existence.

[00:58:01] Speaker 04:
There is no place for the tribe to get the waters that it should get from the Hill River elsewhere in the reservation.

[00:58:08] Speaker 04:
It needs that water.

[00:58:10] Speaker 04:
It needs the enforcement.

[00:58:12] Speaker 04:
And I think it needs sound science to do it.

[00:58:15] Speaker 04:
We have no problem with the fact that as even if it's considered an admission against interest that their experts on behalf of those pumpers

[00:58:26] Speaker 04:
and acknowledged that the waters from three of the wells were coming directly from the Gila River.

[00:58:34] Speaker 04:
It's okay for them to argue that while the well itself is argued as maybe a thousand feet or they use the plural thousand away from the river.

[00:58:44] Speaker 04:
But the fact is the way even if you use the artificial concept of subflow zone and the saturated younger Holocene alluvium then

[00:58:56] Speaker 04:
The easy way to tell if you're there in the saturated policy in a lupium and the presumption that Judge Ballinger established for the San Pedro case is to say, drill a well, drill a hole and if there's water in it, it's saturated and it's the subflow.

[00:59:15] Speaker 04:
And if it isn't, then the presumption was wrong.

[00:59:19] Speaker 04:
The problem here is they say,

[00:59:20] Speaker 04:
that they should be able to go to the state adjudication court.

[00:59:25] Speaker 04:
I've been in it since the first day.

[00:59:27] Speaker 04:
I'm the only guy left standing that was there on the first day.

[00:59:31] Speaker 04:
I can't be proud of that.

[00:59:32] Speaker 04:
I'm just tolerant of that fact.

[00:59:36] Speaker 04:
But the fact is that they misstate the McCarran Amendment.

[00:59:41] Speaker 04:
It only waives the sovereign immunity of the United States to be included in a case of adjudication of broad

[00:59:51] Speaker 04:
a total intercity jurisdictional decision on all the waters under a state command.

[00:59:59] Speaker 04:
Arizona versus San Carlos and the Supreme Court said, well, there can be joint jurisdiction between either court

[01:00:10] Speaker 04:
federal or state and whoever takes the first initiative and can go as exclusive jurisdiction to proceed or in concurrent jurisdiction.

[01:00:23] Speaker 04:
And here in this case, in the state adjudication, the federal court yielded this jurisdiction, this court yielded to the arguments to the state, made by the state that they should take jurisdiction but what

[01:00:40] Speaker 04:
The jurisdictional consequences of that is that the Arizona Supreme Court decided in Hilo 6, I didn't make up these numbers, but I was involved in all of them, Hilo 6, that it was going to take jurisdiction and had jurisdiction over the tributaries of the Hilo River and then nodded to the San Carlos Apache Tribe.

[01:01:02] Speaker 04:
Look, you didn't do real well in the Hilo Decree on the main stem of the river and its underground waters,

[01:01:10] Speaker 04:
That's what you got.

[01:01:11] Speaker 04:
And so let's make the best of that.

[01:01:14] Speaker 04:
And let's do so here.

[01:01:16] Speaker 02:
Mr. Sparks, I'm sorry to interrupt you.

[01:01:19] Speaker 02:
Yes, ma'am.

[01:01:21] Speaker 02:
So you're like 12 minutes over your time.

[01:01:23] Speaker 02:
So we're pretty significantly beyond time.

[01:01:25] Speaker 02:
Could you just conclude your remarks in the next few moments?

[01:01:28] Speaker 04:
Yes, Your Honor.

[01:01:31] Speaker 04:
Even if somehow the court decided that one or more of these arguments is not

[01:01:39] Speaker 04:
is not within the realm of the decision makers to make here.

[01:01:49] Speaker 04:
You can confirm the final judgment of the trial court based on any defensible and viable evidence before the court.

[01:02:03] Speaker 04:
And therefore, we ask that you affirm the trial court before and at the judgment at 0006 and 0007 of the ER.

[01:02:16] Speaker 04:
Thank you for your tolerance, Chair.

[01:02:18] Speaker 02:
Thank you.

[01:02:20] Speaker 02:
All right.

[01:02:21] Speaker 02:
Mr. Berg, I think the other side went about a total of 25 minutes over time.

[01:02:27] Speaker 02:
So I'm not going to say the clock no longer exists, but that's twice

[01:02:31] Speaker 02:
what they were allotted.

[01:02:32] Speaker 02:
So we're not going to be real strict with you on your three minutes for rebuttal.

[01:02:36] Speaker 02:
And as long as we're still asking you questions, you can remain at the lectern and answer our questions.

[01:02:41] Speaker 03:
Thank you, Your Honor.

[01:02:42] Speaker 03:
I want to start with the question of whether there's a genuine issue of material factor.

[01:02:48] Speaker 03:
The HILA IV case makes it clear that

[01:02:54] Speaker 03:
at the very best their argument is that the subflow zone is a saturated FHA, not just the FHA as Judge Clifton pointed out.

[01:03:03] Speaker 03:
Second, as Judge Clifton also pointed out correctly, what Judge Ballinger said is you assume the FHA is saturated not for purposes of deciding the individual merits of somebody's water rights, but for the purpose of deciding whether they're subject to the jurisdiction of the adjudication court.

[01:03:21] Speaker 03:
In other words, they can't simply say because a well is located in the FHA that in and of itself proves that it is pumping subflow and proves that it's pumping subflow.

[01:03:34] Speaker 03:
It could still be pumping entirely groundwater in the FHA so long as it isn't pumping, as long as they haven't proved saturation.

[01:03:44] Speaker 03:
Second, they have the obligation of proving by clearing convincing evidence.

[01:03:50] Speaker 03:
that we're pumping subflow.

[01:03:53] Speaker 03:
There is at the very least a genuine issue of material factor.

[01:03:56] Speaker 03:
It's found in Dr. Lipson's testimony.

[01:04:00] Speaker 03:
Dr. Lipson testified.

[01:04:01] Speaker 06:
Dr. Shaw told us that the state adjudication court has been applying, or I understood him to say, have been applying that assumption more broadly.

[01:04:13] Speaker 06:
That is, it is willing to accept the proposition that if you're in the FHA,

[01:04:21] Speaker 06:
That's enough to satisfy the obligation.

[01:04:24] Speaker 03:
That's certainly not my understanding, Your Honor.

[01:04:26] Speaker 03:
I would, I would, that's not my understanding of what the district, what the water court is doing.

[01:04:31] Speaker 06:
Do you know if, if, I mean the reference has been to Judge Ballinger's use and the district court's order here acknowledges that his application was for jurisdiction.

[01:04:44] Speaker 06:
It goes on to say that in the view that if your court was irrelevant

[01:04:48] Speaker 06:
and makes a generalized reference, which I confess I've never really understood, that suggested that maybe in fact that's what's happening in state.

[01:04:58] Speaker 06:
Has there been anything reported that would help me understand how that proposition or that presumption is being treated?

[01:05:04] Speaker 03:
Not that I'm aware of, Your Honor.

[01:05:06] Speaker 03:
I think if you look at HILA for what it says, it's saturated, but it doesn't say that you assume the entire FHA is saturated.

[01:05:15] Speaker 03:
And what Judge Ballinger says is you assume that for jurisdiction purposes.

[01:05:19] Speaker 06:
And am I correct in saying jurisdictional purposes is whether the court has authority over this particular?

[01:05:25] Speaker 03:
Right.

[01:05:26] Speaker 03:
Right.

[01:05:26] Speaker 03:
It's whether the well is subject to the adjudication itself.

[01:05:29] Speaker 03:
It's not a determination that is in fact impermissibly pumping river water.

[01:05:36] Speaker 03:
Dr. Lipson's testimony by itself creates a genuine issue of material fact.

[01:05:40] Speaker 03:
He testified that

[01:05:42] Speaker 03:
that the wells were located outside the FHA.

[01:05:46] Speaker 03:
And that again creates a genuine issue of material fact as to that, although it doesn't matter if they haven't proven the FHA was saturated.

[01:05:53] Speaker 03:
He also testified that clay was present.

[01:05:56] Speaker 03:
And I think Mr. Patel, I'm sorry, Mr. Shaw, I apologize, overreaches by saying you have to put in evidence that there's an entire impermissible letter.

[01:06:05] Speaker 03:
I think the presence of clay by itself is enough to create a genuine issue of material fact

[01:06:10] Speaker 03:
as to whether that clay is preventing subflow from coming up through the river and being pumped by the well.

[01:06:20] Speaker 03:
And if there is the presence of clay there, then the trier effect ought to listen to Dr. Lipson and their expert, Dr. Mock, I think it was, and our folks and determine that.

[01:06:30] Speaker 03:
But the fact that there's clay there and the fact that

[01:06:33] Speaker 03:
that Dr. Lipson says the clay there may indicate the presence of something that stops the water from going up.

[01:06:38] Speaker 03:
It's enough to create a genuine issue of material effect.

[01:06:40] Speaker 06:
But if it's not a continuous barrier, I mean, it's like you can have a wall around two sides of your yard, but if there's not a wall on the other side, then the coyotes in this part of the world can come in.

[01:06:53] Speaker 03:
But if the wall stops me where I'm drilling, or the clay layer stops me where I'm drilling from getting to it, it doesn't matter if the clay layer covers the whole valley, Your Honor.

[01:07:02] Speaker 03:
And again, that would be a fact question that needs to be determined by the trier of fact.

[01:07:06] Speaker 03:
The impact of the clay layer, it seems to me, is a genuine issue of material factor.

[01:07:11] Speaker 06:
I understand that, but I also know at time of summary judgment, the party is supposed to push forward what they have.

[01:07:17] Speaker 06:
And it does appear that Dr. Libson doesn't have something that would support the proposition that there's a layer that necessarily prevents

[01:07:28] Speaker 06:
sub-flow water from getting to these wells.

[01:07:31] Speaker 03:
I think what Dr. Lipson's study shows is that there is clay there and that clay may prevent the water from getting up there.

[01:07:39] Speaker 03:
But it may prevent enough.

[01:07:40] Speaker 03:
I think so, Your Honor, for a genuine initial material fact, sure.

[01:07:43] Speaker 03:
What additional evidence would there be for trial?

[01:07:46] Speaker 03:
It may well be there'd be additional studies between now and trial.

[01:07:48] Speaker 03:
It may well be that Dr. Lipson would testify to more than is in his report.

[01:07:53] Speaker 03:
That's why we have trials, Your Honor, particularly in complicated

[01:07:57] Speaker 03:
issues of hydrology like this.

[01:08:00] Speaker 03:
There's a danger in letting lawyers practice hydrology, but it seems to me that the answer here, as the court's pointed out, is this is an incredibly complicated factual matter.

[01:08:11] Speaker 03:
And the question is, at the end, whether these wells pump water that is sub-flow under Arizona law, and not all water that comes from the river is sub-flow under Arizona law under the Southwest Cotton case.

[01:08:25] Speaker 03:
And then the question is, what percentage is it?

[01:08:28] Speaker 03:
And both of those are disputed issues of material fact in this case.

[01:08:33] Speaker 03:
And Judge Rash with all due respect jumped over those issues and simply said, I'm going to find if there's any water here that I think is river water at all, I'm going to shut the wells down completely.

[01:08:45] Speaker 03:
And he both ignored the genuine issues of material fact on what I'll call liability or whether the wells were pumping subflow.

[01:08:52] Speaker 03:
And he certainly ignored genuine issues of material fact as to how much subflow they were pumping and the appropriateness of the remedy.

[01:09:00] Speaker 03:
Concurrent jurisdiction.

[01:09:04] Speaker 03:
You've read all of our arguments on exclusive jurisdiction on our side and on the tribe side.

[01:09:09] Speaker 03:
Let's talk about concurrent jurisdiction for a moment.

[01:09:12] Speaker 03:
In 2007,

[01:09:14] Speaker 03:
A judgment was entered binding all of these parties, which essentially said, if you are talking about disputes among parties to the globe equity decree, you go to federal court.

[01:09:28] Speaker 03:
If you are talking about disputes that involve nonparties to the globe equity decree, you go to state court.

[01:09:34] Speaker 03:
Why?

[01:09:35] Speaker 03:
Because the globe equity decree cannot bind nonparties.

[01:09:40] Speaker 03:
is a fundamental issue of both, I suppose, race to cod and collateral estoppel, as they called them back in the days I was in law school, and of due process, that you can't bind somebody to a judgment that they're not a party to and where they didn't have an opportunity to present their case.

[01:09:57] Speaker 03:
And the problem with the globe equity decree as exclusive main stem is it doesn't include everybody that should have been included or could have been included.

[01:10:06] Speaker 03:
And it doesn't include everybody now.

[01:10:07] Speaker 03:
That's why the adjudication is better, because it's a system that adjudicates everybody's water rights.

[01:10:13] Speaker 03:
It adjudicates them all at once.

[01:10:15] Speaker 03:
It'll establish priorities, each as to the other.

[01:10:19] Speaker 06:
Well, I'll hark back to what I was asking you previously, that we have here a river that's

[01:10:27] Speaker 06:
kind of thoroughly drained, over-allocated, and we have claims apparently filed by your client in the state adjudication court, but seems pretty obvious they couldn't have seniority, they couldn't have preference over the claims of the community and the tribe that date back to time immemorial, 1840, whatever.

[01:10:53] Speaker 06:
I hear what you're saying, but is there practically speaking any serious basis upon which your clients can assert that they have rights to Gila River water as distinguished from the groundwater?

[01:11:04] Speaker 03:
Well, first of all, Your Honor, the issue to be litigated, I think Judge Bolton pointed this out at some point, is whether we're pumping groundwater or surface water.

[01:11:12] Speaker 06:
And that's the main issue here.

[01:11:14] Speaker 06:
And your suggestion that somehow in 2007 it was decided that anything involving somebody that wasn't a party to the

[01:11:22] Speaker 06:
federal court, even acknowledging it's a consent decree, still has a card to play.

[01:11:30] Speaker 06:
I just don't get it.

[01:11:32] Speaker 03:
Your Honor, they have a card to play in the sense that they have a right to their day in court.

[01:11:37] Speaker 03:
Well, here we are.

[01:11:40] Speaker 03:
But they didn't get their day in court.

[01:11:41] Speaker 03:
What Judge Rash did was simply enforce a decree against them.

[01:11:44] Speaker 06:
Lots of people have days in court, but is the day worth anything if you don't have anything but an empty hand?

[01:11:52] Speaker 06:
I mean, if their rights to this over-allocated stream are plainly junior to the rights of the other parties that have shares,

[01:12:05] Speaker 06:
What are we talking about in real terms?

[01:12:07] Speaker 03:
First of all, Your Honor, it has never been established as a matter of fact in this case that the pumping we're doing reduces the amount of water received by the tribe and the community below what they're entitled to.

[01:12:21] Speaker 06:
And the main issue for me is the groundwater versus subflow.

[01:12:25] Speaker 06:
But your argument seems to be harking back to, and the consent degree can't speak to us, because we never got a chance to claim to the Gila River, and I don't see any realistic claim your clients would have to Gila River water.

[01:12:41] Speaker 03:
I guess my answer, Your Honor, is my clients are entitled to make their claim in court, whether it's realistic or not.

[01:12:47] Speaker 03:
When I clerked for Judge Chambers, one day he let some fellow whose dog had been poisoned come in and argue

[01:12:53] Speaker 03:
that this Alameda County attorney had violated his civil rights.

[01:12:58] Speaker 03:
And I said to the judge, why are we doing this?

[01:13:00] Speaker 03:
And the answer is, he's entitled to his day in court, even if he can't ever win.

[01:13:03] Speaker 06:
Yeah, but we live in a real world.

[01:13:05] Speaker 06:
And if the day in court is purely theoretical, he may have his day here, but I'm not sure that we should say, let's not pay attention to what's going on.

[01:13:13] Speaker 03:
But it's not theoretical.

[01:13:15] Speaker 03:
Because what they want to do is say, you can go, even if you're pumping groundwater,

[01:13:23] Speaker 03:
You can go to the, what's happened your honor here, let me see if I can explain this.

[01:13:30] Speaker 03:
My clients are now precluded from pumping groundwater.

[01:13:33] Speaker 03:
Everybody agrees that as a matter of Arizona law, they have a right to pump groundwater.

[01:13:39] Speaker 03:
Everybody I think would agree at least based on the decree, the district court doesn't have a right to stop them from pumping groundwater.

[01:13:47] Speaker 05:
Not arguing yet.

[01:13:49] Speaker 05:
I'm not arguing with you yet.

[01:13:51] Speaker 03:
So at that point,

[01:13:53] Speaker 03:
The district court wasn't entitled to exercise jurisdiction over their claim to pump groundwater and wasn't entitled to preclude them from pumping groundwater.

[01:14:03] Speaker 03:
That belonged in the adjudication.

[01:14:06] Speaker 06:
Actually, no, the adjudication is about Gila River water.

[01:14:10] Speaker 03:
The adjudication is about the water of the Gila River system and its tributaries.

[01:14:15] Speaker 06:
And that's right, if once we've got a right to groundwater wherever you go, whatever court.

[01:14:20] Speaker 06:
that the problem here is the adjudication of the federal court says that some of what your client is pumping is Gila River water and you've got no apparent right to Gila River water and you're trying to suggest that you do but I don't see it.

[01:14:36] Speaker 06:
I think what you're allowed to argue is that we're not pumping Gila River water or that there should be another remedy but I really don't see a basis for claiming that, gee, we weren't around in 1935 and so,

[01:14:49] Speaker 06:
we didn't get to make this claim, which is pretty empty.

[01:14:52] Speaker 03:
Right.

[01:14:53] Speaker 03:
I'll stand on the ground that you can't enforce a consent decree against somebody who's not a party.

[01:14:57] Speaker 03:
Let's just, but I agree with you.

[01:14:59] Speaker 03:
There's a genuine issue of material factor as to whether what we're pumping is, is river water or ground, I mean, is subflow or groundwater.

[01:15:08] Speaker 03:
And based on Dr. Lipson's testimony, we're entitled to have our day in court that they're relying on a presumption that doesn't apply and they're relying on

[01:15:19] Speaker 03:
evidence that is controverted.

[01:15:21] Speaker 03:
And at the end of the day, that's enough.

[01:15:24] Speaker 03:
They say to you that Smith stands for the proposition that a federal court has jurisdiction over a non-pumper.

[01:15:29] Speaker 03:
If you look at the Smith case, Judge Wright wrote that opinion has nothing to do with jurisdiction.

[01:15:33] Speaker 06:
Smith says, let's look at real science, which nobody has been doing for decades.

[01:15:40] Speaker 03:
I would be the first to admit that one of the challenges that everybody has here is that the Arizona law

[01:15:45] Speaker 03:
And I think the Supreme Court has admitted this, probably isn't consistent with science, but it's consistent with the reality that that's been the Arizona law for as long as it's been.

[01:15:54] Speaker 06:
Dates from a time before the science of today was available.

[01:15:57] Speaker 03:
I thought about starting my response to Mr. Sparks by saying he thinks science has to prevail, and the Arizona Supreme Court has said law has to prevail, and it's going to ignore science on this question.

[01:16:09] Speaker 06:
I apologize for making you work overtime.

[01:16:16] Speaker 07:
Do you have any response on the over-breath, the remedy?

[01:16:19] Speaker 03:
Yes, Your Honor.

[01:16:21] Speaker 03:
It is over-broad.

[01:16:23] Speaker 03:
Assume for a moment there's at least a genuine issue of material fact as to whether the wells are pumping two, three, four percent groundwater.

[01:16:33] Speaker 03:
I think by raising the issue that the injunction was over-broad before that court, that's sufficient to allow us to argue that the court should have entered a different injunction.

[01:16:43] Speaker 07:
But did you offer, tell the court what it should have issued instead?

[01:16:49] Speaker 07:
I understand you still want to contest the subflow, but once the district court says, I think they're entitled to summary judgment, you can reasonably say, Your Honor, we respectfully disagree and we will talk to the Ninth Circuit about that, but assuming for purposes of the remedy that you are correct,

[01:17:06] Speaker 07:
We are only pumping at most 2.6% at sexta number one, and everything else is less than that.

[01:17:14] Speaker 07:
And therefore, if you're going to create a remedy, it ought to be X. Now, what did you propose?

[01:17:20] Speaker 03:
Your Honor, we have to go back and look.

[01:17:22] Speaker 03:
I haven't found anything in the time we were sitting here, but I want to go back and look at the whole record, and I'll supplement it.

[01:17:27] Speaker 03:
And if we didn't suggest anything, I'll...

[01:17:29] Speaker 03:
If you didn't suggest anything else, what are we supposed to do?

[01:17:37] Speaker 03:
I think what you're supposed to do is say to the court, on its face, this is an overbroad remedy.

[01:17:43] Speaker 03:
There's at least an issue, a factor, that we're only pumping 2 percent.

[01:17:47] Speaker 03:
And it's an over-broad remedy on its face, even if we didn't offer any other alternative to shut the wells down and shut these farms down entirely if we're pumping 2 percent subflood.

[01:17:57] Speaker 03:
I think you can do that, and I think you should do that.

[01:18:02] Speaker 03:
If the Court has no further questions, I have nothing to add.

[01:18:04] Speaker 03:
Thank you, Your Honors.

[01:18:06] Speaker 02:
Thank you.

[01:18:07] Speaker 02:
Thank you, Counsel, for your time and expertise this morning.

[01:18:11] Speaker 02:
Your arguments were very helpful.

[01:18:13] Speaker 02:
This case is submitted and we are in recess until Friday morning.