Submitted December 15, 2016 San Francisco, California
from the United States District Court for the District of
Arizona, D.C. Nos. 4:31-cv-00059-SRB 4:31-cv-00061-SRB Susan
R. Bolton, District Judge, Presiding Argued and
L. Smeltzer (argued), Katherine J. Barton, F. Patrick Barry,
and Yosef Negose, Attorneys, and John C. Cruden, Assistant
Attorney General, Environment & Natural Resources
Division, United States Department of Justice, Washington,
D.C.; Scott Bergstrom and Andrew Engel, Office of the
Solicitor, United States Department of the Interior,
Washington, D.C.; for Plaintiff-Appellant/Cross-Appellee
A. Shah (argued), Merrill C. Godfrey, Hyland Hunt, and Z.W.
Julius Chen, Akin Gump Strauss Hauer & Feld LLP,
Washington, D.C.; Linus Everling and Thomas L. Murphy, Gila
River Indian Community, Pima Maricopa Tribe Law Office,
Sacaton, Arizona; for
Intervenor-Plaintiff-Appellant/Cross-Appellee Gila River
Sparks (argued) and Julia Rowen Kolsrud, The Sparks Law Firm
P.C., Scottsdale, Arizona, for
Intervenor-Plaintiff-Appellant/Cross-Appellee San Carlos
Apache Tribe of Arizona.
T. Hood (argued) and Rhett Billingsley, Fennemore Craig P.C.,
Phoenix, Arizona, for Defendant-Appellee/Cross-Appellant
Freeport Minerals Corporation.
F. Eckstein (argued) Shane R. Swindle, and Vidula U. Patki,
Perkins Coie LLP, Phoenix, Arizona; David A. Brown, Brown
& Brown, St. Johns, Arizona; for
Defendant-Appellee/Cross-Appellant Gila Valley Irrigation
District and Franklin Irrigation District.
B. Hoffman, Somach Simmons & Dunn, Sacramento,
California; for Defendants-Appellees/Cross-Appellants Larry
W. Barney, Viri Viva Lunt Revocable Trust, TRP Family Trust,
Ronald Howard, Janice Howard, Myrna Curtis, Joe B. Tatum,
Judy L. Tatum, Harrington Ranch And Farm, S&R Daley, LP,
Steve Daley, Ross and Fawn Bryce Family Trust, Householder
Family Limited Partnership, and Kenneth Claridge.
B. Weldon, Jr., Mark A. McGinnis, Lisa M. McKnight, and Scott
M. Deeny, Salmon Lewis & Weldon P.L.C., Phoenix, Arizona,
for Amici Curiae Salt River Valley Water Users'
Association and Salt River Project Agricultural Improvement
and Power District.
Before: Diarmuid F. O'Scannlain, Ronald M. Gould, and
Milan D. Smith, Jr., Circuit Judges.
panel affirmed in part, and reversed in part, the district
court's September 4, 2014 judgment in these consolidated
appeals involving the Globe Equity Decree of 1935, and
concerning whether landowners can transfer their rights to
divert water from the Gila River, which flows through
southern Arizona; and dismissed the cross appeals.
1935, the district court entered a consent decree, the Globe
Equity Decree, to govern the distribution of water among the
Gila River Indian Community, the San Carlos Apache Tribe, and
various other landowners. The district court has continuing
jurisdiction to enforce and interpret the Decree.
2007, the Community, the San Carlos Irrigation and Drainage
District, the United States, and thousands of individual
landowners entered into the Upper Valley Forbearance
Agreement providing that the individual landowners could
sever and transfer certain water rights. Pursuant to the
Agreement, in 2008, fifty-nine sever and transfer
applications were filed by Freeport Minerals Corporation, and
the remaining parties filed objections. In a Freeport
sub-docket, the district court denied Freeport's initial
ten applications. The district court then adjudicated other
sever and transfer applications filed in 2008, and eventually
resolved Freeport's remaining applications. The district
court entered its final judgment with respect to all of the
419 sever and transfer applications filed in 2008, and it was
applicable to both the main docket and the Freeport
to jurisdiction questions, the panel held that it lacked
jurisdiction over the applications and associated objections
of non-Freeport applicants because the applications and
accompanying objections filed by the non-Freeport defendants
were voluntarily withdrawn or dismissed without prejudice.
Additionally, concerning the non-Freeport defendants, the
panel held that because there were ongoing sever and transfer
applications being litigated on the main docket, the district
court should have complied with Fed.R.Civ.P. 54(b). Because
the district court did not follow Rule 54(b), the panel held
that its September 4, 2014 order was not properly appealable
as it related to the main docket. The panel held that no Rule
54(b) finding was required for the Freeport sub-docket
because no additional applications remained pending, and
concluded that appellate jurisdiction over Freeport's
applications and accompanying objections was proper.
further jurisdictional issues for the Freeport sub-docket
appeals, the panel held that jurisdiction was proper over
Applications 138, 150, and 162, together with associated
counterclaims, along with the counterclaim for Application
147, and the additional fourteen applications appealed by
Freeport. The panel left it to the district court to decide
in the first instance whether the other six applications and
associated counterclaims were moot due to the covenants
Freeport entered under the Agreement.
to the merits, the panel held that the district court did not
err in holding that Freeport failed to present a prima facie
case of no injury to other Decree parties. The panel also
held that the district court did not err in denying
Freeport's Fed.R.Civ.P. 15(b)(1) motion to amend its
applications to conform to the revised maps it filed during
discovery. The panel held that allowing Freeport to amend its
applications during closing argument would have resulted in
prejudice to the objecting parties, and may have resulted in
prejudice to additional parties under the Decree; and such
material changes should be made by filing new sever and
panel held that the district court erred by considering
whether Arizona's law of statutory forfeiture, Arizona
Revised Statutes § 45-141(C), applied to Freeport's
water rights when it concluded that water rights which vested
prior to 1919 could not be lost through statutory forfeiture.
The panel held that this interpretation was foreclosed by the
Arizona Supreme Court's holding in San Carlos Apache
Tribe v. Superior Court ex rel. Cty of Maricopa, 972
P.2d 179, 187, 204 (Ariz. 1999) (en banc) (holding that
statutory forfeiture applied to pre-1919 water rights); and,
thus, there was no need for the district court to evaluate
further the 1919 water code. The panel left it to the
district court on remand to determine in the first instance
how statutory forfeiture applied to the remaining objections.
panel held that the district court did not clearly err in
determining that Freeport had abandoned its water rights in
1.4 acres of land that were part of the sever parcel in
Application 147 because the creation of (and failure to
remove) a road and canal demonstrated an intent to abandon,
and because Freeport failed to use its water rights in the
land covered by the canal for at least eleven years. The
panel held that the district court appropriately tailored its
holding by limiting its finding of abandonment to 1.4 acres
out of the 15.5 acre parcel.
panel declined to address in the first instance the question
of abandonment of water rights in land that had become
riverbed in certain applications.
O'SCANNLAIN, Circuit Judge:
these consolidated appeals involving the Globe Equity Decree
of 1935, we must decide whether landowners can transfer their
rights to divert water from the Gila River which flows
through southern Arizona.
cases arise out of litigation that began over ninety years
ago. In 1925, the United States first brought suit on behalf
of the Gila River Indian Community ("Community")
and the San Carlos Apache Tribe ("Tribe"), seeking
to adjudicate the water rights involving the Gila River. In
1935, the district court entered a consent decree, known as
the Globe Equity Decree ("Decree"), to govern the
distribution of water among the Community, the Tribe, and
various other landowners. See United States v. Gila
Valley Irrigation Dist., 31 F.3d 1428, 1430 (9th Cir.
1994) ("GVID IV"). The district court has
continuing jurisdiction to enforce and to interpret the
Decree, which provides for the appointment of a Water
Commissioner for such enforcement purposes.
to the Decree are entitled to divert water from the River for
the "beneficial use" and "irrigation" of
land in accordance with the specified priorities. The
Community and the Tribe have the senior-most water rights
(the Community's date from time "immemorial"
and the Tribe's date from 1846). Covered parcels of land
are described in the Decree by reference to the number of
acres located in a quarter-quarter section of the Public Land Survey System. Parties
to the Decree are permitted "to change the point of
diversion and the places, means, manner or purpose of the use
of the waters to which they are so entitled or any part
thereof, so far as they may do so without injury to the
rights of other parties."
1993, the district court entered an order (the "Change
in Use Rule") outlining the procedures for severing
water rights from one piece of property and transferring them
to another. Parties must file a sever and transfer
application with the Water Commissioner, who will publish
notice of such application. If there are objections filed by
other parties to the Decree, either the applicant or the
objectors may request an evidentiary hearing before the
district court. "The applicant shall have the burden of
establishing a prima facie case of no injury to the rights of
other parties under the Gila Decree and a right to
1996, the district court entered a Water Quality Injunction,
which provides that if the water quality reaching the Tribe
deteriorates below certain thresholds, the Water Commissioner
is directed to take measures limiting the diversions of water
rights holders in the Safford Valley.
2001, the Community, the Tribe, the United States, and the
San Carlos Irrigation and Drainage District
("SCIDD") jointly filed a post-judgment complaint
("Pumping Complaint") asking the district court to
enforce the Decree against thousands of individual landowners
("Upper Valley Defendants" or "UVDs")
who, they claimed, were using wells to pump subflow of the
river in excess of their decreed rights. In 2007, the
Community, the SCIDD, the United States (as plaintiff, but
not the Tribe or the United States in its capacity as trustee
for the Tribe), and the UVDs entered into the Upper Valley
Forbearance Agreement ("UVFA") by which they agreed
to dismiss the Pumping Complaint if the UVDs permanently
reduced the number of acres they were entitled to irrigate by
addition, the UVFA provided that UVDs could sever and
transfer water rights from decreed lands to certain "Hot
Lands, " which had been irrigated but were not covered
by the Decree. If property owners filed such good faith
applications within six months of the enforceability date of
the UVFA, they could continue to irrigate these Hot Lands
while their applications were pending. The plaintiffs agreed
not to object to properly filed applications.
to the UVFA, a total of 419 sever and transfer applications
were filed in 2008. Fifty-nine of these were from Freeport
Minerals Corporation ("Freeport"), who had begun
acquiring decreed lands in 1997. Freeport purchased farms for
the express purpose of obtaining water rights, required its
tenants to maintain the water rights, and paid all
water-related assessments and fees.
United States, the Tribe, and the Community
("Plaintiffs") filed objections to the sever and
transfer applications. After receiving
proposals from the interested parties on the best way to
manage so many applications, the district court began by
adjudicating Freeport's applications first. Accordingly,
it created a sub-docket, No. 4:31-cv-00061-SRB, to which it
transferred Freeport's fifty-nine applications, while
staying the proceedings on other parties' applications.
At the district court's invitation, the parties selected
ten of Freeport's applications for initial
applications, Freeport described its parcels by reference to
the quarter-quarter section in which they fell but did not
indicate a more specific location for the lands to and from
which it was seeking to sever and to transfer water rights.
After a ruling by the district court that sever and transfer
applications should identify the "precise locations of
the parcels within the quarter-quarter section, "
Freeport hired a consultant to create more detailed maps and
legal descriptions of the lands at issue. Freeport disclosed
these revised maps and descriptions during discovery in
November 2009. The revisions affected the locations and legal
descriptions of multiple parcels, though each map revision
fell within the same overall quarter-quarter section as its
district court held an evidentiary hearing (which the parties
refer to as a "trial") on Freeport's initial
ten applications from February 9-25, 2010 and denied them all
on August 3, 2010, granting the Tribe's motion for
judgment as a matter of law. The court concluded that (1)
Freeport had failed to present a prima facie case of no
injury to other Decree parties, (2) Arizona's statutory
forfeiture law did not apply, and (3) Freeport had partially
abandoned the water rights in one of its proposed sever
parcels, and (4) it further declined to amend Freeport's
applications to conform to its revised maps.
attempted to appeal the order, but we declined jurisdiction
because it was "neither a partial nor a final
judgment." United States v. Sunset Ditch Co.,
472 F.App'x 472, 474 (9th Cir. 2012). We instructed the
district court that it needed to "resolve issues related
to Freeport's other applications, as well as issues
related to other applicants." Id. at 473.
the district court proceeded to adjudicate other sever and
transfer applications filed in 2008. Freeport's remaining
applications were either denied or withdrawn. Pursuant to the
UVFA, Freeport entered into covenants agreeing "to
retire certain decreed water rights and to refrain from
irrigating" the lands that were the subject of six of
the original ten applications first adjudicated by the
district court. All of the
remaining 2008 applications from non-Freeport parties were
September 4, 2014, the district court entered "final
judgment with respect to, and in accordance with, all the
Court's orders and proceedings on the 419 applications to
sever and transfer Decree water rights filed with the Water
Commissioner in 2008, " applicable both to the main
docket, No. 4:31-cv-00059-SRB, as well as the separate
Freeport sub-docket, No. 4:31-cv-00061-SRB. Nonetheless,
there have been new sever and transfer applications filed on
the main docket since 2008, and the district court continues
to adjudicate issues on such docket (but not the Freeport
United States, the Community, and the Tribe timely appealed,
and Freeport, Gila Valley Irrigation District, Franklin
Irrigation District, Larry W. Barney, Viri Viva Lunt
Revocable Trust, TRP Family Trust., Ronald Howard, Janice
Howard, Myrna Curtis, Joe B. Tatum, Judy L. Tatum, Harrington
Ranch And Farm, S&R Daley, LP, and Steve Daley, Ross and
Fawn Bryce Family Trust, Householder Family Limited
Partnership, and Kenneth Claridge timely cross-appealed.
reaching the merits, various jurisdictional questions have
been brought to our attention by the parties, which must
first be resolved. "We, of course, have jurisdiction to
determine our own jurisdiction." Special Invs., Inc.
v. Aero Air, Inc., 360 F.3d 989, 992 (9th Cir. 2004).
parties explain, the sever and transfer applications of all
of the non-Freeport applicants that were filed in 2008 have
been voluntarily withdrawn or dismissed without prejudice,
together with their accompanying objections.
III's 'case-or-controversy' requirement precludes
federal courts from deciding 'questions that cannot
affect the rights of litigants in the case before
them.'" Protectmarriage.com-Yes on 8 v.
Bowen, 752 F.3d 827, 834 (9th Cir. 2014) (quoting
DeFunis v. Odegaard, 416 U.S. 312, 316 (1974) (per
curiam)). Indeed, "the general rule in this
circuit" is that "voluntary dismissals without
prejudice do not create appealable, final judgments."
Romoland Sch. Dist. v. Inland Empire Energy Ctr.,
LLC, 548 F.3d 738, 748 (9th Cir. 2008); see also
Concha v. London, 62 F.3d 1493, 1507 (9th Cir. 1995).
But see James v. Price Stern Sloan, Inc., 283 F.3d
1064, 1070 (9th Cir. 2002) (carving out a limited exception
to this rule).
the applications and accompanying objections filed by
non-Freeport defendants have been voluntarily withdrawn or
dismissed without prejudice, any decision of this court will
affect the rights of these parties only tangentially by
outlining legal principles which could apply to future
applications. Thus, as counsel for the non-Freeport
defendants admitted at oral argument, this court lacks
jurisdiction over the applications and associated objections
of non-Freeport applicants.
is a further reason to decline jurisdiction over the appeals
of non-Freeport defendants, as they also recognize. "A
district court order is . . . not appealable unless it
disposes of all claims as to all parties or unless judgment
is entered in compliance with Federal Rule of Civil Procedure
54(b)." Romoland Sch. Dist., 548 F.3d at 747.
Federal Rule of Civil Procedure 54(b) provides:
When an action presents more than one claim for
relief-whether as a claim, counterclaim, crossclaim, or
third-party claim-or when multiple parties are involved,
the court may direct entry of a final judgment as to one
or more, but fewer than all, claims or parties only if the
court expressly determines that there is no just reason for
delay. Otherwise, any order or other decision, however
designated, that adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties does not
end the action as to any of the claims or parties and may be
revised at any time before the entry of a judgment
adjudicating all the claims and all the parties' rights
as Rule 54(b) makes plain, "[f]inality is achieved only
if the court takes each of two steps-it must make an
'express determination that there is no just reason for
delay' and it also must make 'an express direction
for the entry of judgment.'" 15A Charles Alan
Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure: Jurisdiction and Related Matters
§ 3914.7 (2d ed. 1991).
the district stated that it was entering "final judgment
with respect to . . . the 419 applications . . . filed . . .
in 2008." But it never made an "express
determination" that there was no need for further delay.
One might argue that the district court's order of
"final judgment" necessarily means that the
district court thought there was no reason to delay appeal.
Yet, "[i]nterpreting a judgment as a Rule 54(b)
determination without the required findings would effectively
read out those requirements from Rule 54(b)." Am.
States Ins. Co. v. Dastar Corp., 318 F.3d 881, 889 (9th
United States and Community contend that we have jurisdiction
"over any order that finally resolves all matters in a
post-judgment proceeding." Indeed, "[t]he
Supreme Court has emphasized that the finality
requirement is to be given 'a "practical rather than
a technical construction."'" United States
v. Ray, 375 F.3d 980, 985 (9th Cir. 2004) (quoting
Firestone Tire & Rubber Co. v. Risjord, 449 U.S.
368, 375 (1981)). Further, "when post-judgment orders
are involved[, ] [t]he policy against and the probability of
piecemeal review [one of the major justifications for the
final order doctrine] is not as decisive a consideration
after judgment as before judgment since the underlying
dispute is already settled." Id. at 986 (first
and second alteration in original) (quoting United States
v. Washington, 761 F.2d 1404, 1406 (9th Cir. 1985));
see also Armstrong v. Schwarzenegger, 622 F.3d 1058,
1064-65 (9th Cir. 2010).
such cases addressed whether post-judgment orders could
be final for purposes of 28 U.S.C. § 1291, rather
than discussing the procedural requirements needed to
make an order final under Rule 54(b). There is no
question that a post-judgment order can be treated as a final
order, even if there remain other, ongoing post-judgment
proceedings. See Ray, 375 F.3d at 986. But this does
not free the district court from the strictures of Rule
true that in the context of post-judgment proceedings in
Washington, 761 F.2d at 1406-07, we held that a
district court's decision to adopt a five-year
"interim" plan, governing the number of fish
permitted to escape certain fisheries, was appealable as a
final order, although the district court did not certify it
under Rule 54(b) or as an interlocutory appeal under 28
U.S.C. § 1292(b). But we never evaluated the application
of Rule 54(b) in that case. Thus, Washington
explains why, in the context of district court's ongoing
jurisdiction over a consent decree, it may be sensible to
treat certain orders resolving discrete issues as
"final, " but it does not explain why such orders
should be exempt from Rule 54(b).
a Rule 54(b) explanation is especially helpful where (as
here) there are multiple parties litigating multiple claims
at differing stages, leading to the possibility of confusion
and overlap. It is undisputed that there are ongoing sever
and transfer applications being litigated on the main docket
(No. 4:31-cv-00059-SRB), which were filed in 2014. While
resolution of these applications need not affect the
disposition of the 419 applications from 2008, if the
district court wanted to evaluate sever and transfer
applications in discrete chronological chunks, it ...