1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Gila River Indian Community, No. CV-20-00103-TUC-SHR
10 Plaintiff, Order Re: Motions for Summary Judgment 11 v.
12 Gilligan Bowman, et al.,
13 Defendants. 14 15 16 Pending before the Court are motions for summary judgment filed by Plaintiff Gila 17 River Indian Community (Doc. 339) and Defendants Gilligan Bowman, Blanca Bowman, 18 Samuel Lunt, and Julee Lunt (Doc. 346). For the following reasons, the Court grants the 19 Community’s Motion and denies Defendants’ Motion.1 20 I. Background 21 This matter is related to nearly a century of litigation concerning water rights subject 22 to the Globe Equity Decree No. 59 (“Decree”) entered by this Court in 1935 to govern the 23 distribution of Gila River water among the Gila River Indian Community (the 24 “Community”), the San Carlos Apache Tribe, and various other landowners. United States
25 1The Court finds oral argument on the Motions will not aid in resolution of the 26 issues. See LRCiv 7.2(f); Fed. R. Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998) (“[A] district court can decide the issue without oral argument if the parties can 27 submit their papers to the court.”); see also Bach v. Teton Cnty. Idaho, 207 F. App’x 766, 28 769 (9th Cir. 2006) (“Due process does not require the district court to hold oral argument before ruling on pending motions.”). 1 v. Gila Valley Irrigation Dist., 859 F.3d 789, 794 (9th Cir. 2017). “Parties to the Decree 2 are entitled to divert water from the River for the ‘beneficial use’ and ‘irrigation’ of land 3 in accordance with the specified priorities.” Id. The Arizona Supreme Court has 4 explained: [T]he Decree was intended to resolve all claims to the Gila 5 River mainstem. The United States included as defendants in 6 the Globe Equity litigation all those with claims to the mainstem of the Gila River, and the Decree includes all water 7 rights theories that the parties could have asserted. Thus, as to 8 the mainstem of the Gila River, the Decree is comprehensive. 9 In re Gen. Adjudication of All Rts. to Use Water In Gila River Sys. & Source, 127 P.3d 10 882, 902 (Ariz. 2006). 11 Here, the Community filed suit against a variety of landowners in March 2020, 12 alleging their Decree rights are forfeited pursuant to A.R.S. § 45-141(C) because they 13 failed to use the water for a period of five years or longer. (Doc. 1.) The majority of named 14 defendants have been terminated from this action following settlement agreements with the 15 Community. Thus, the only remaining defendants are Gilligan Bowman, Blanca Bowman, 16 Samuel Lunt, and Julee Lunt (collectively, “Defendants”). The Community has moved for 17 summary judgment against Defendants, and Defendants have moved for summary 18 judgment in their response. (Docs. 339, 346.) 19 II. Jurisdiction 20 This Court has continuing jurisdiction to enforce and interpret the Decree. See Gila 21 Valley Irrigation Dist., 859 F.3d at 794. This Court also has jurisdiction pursuant to 28 22 U.S.C. §§ 1331 and 1362. 23 III. Summary Judgment Standard 24 A court must grant summary judgment “if the movant shows that there is no genuine 25 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 26 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The 27 movant bears the initial responsibility of presenting the basis for its motion and identifying 28 those portions of the record, together with affidavits, if any, that it believes demonstrate 1 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If the movant 2 fails to carry its initial burden of production, the non-movant need not produce anything. 3 Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1102–03 (9th 4 Cir. 2000). But if the movant meets its initial responsibility, the burden shifts to the non- 5 movant to demonstrate a genuine dispute exists; a genuine dispute exists if “the evidence 6 is such that a reasonable jury could return a verdict for the nonmoving party,” and material 7 facts are those “that might affect the outcome of the suit under the governing law.” 8 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see Triton Energy Corp. v. 9 Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The non-movant need not establish a 10 material issue of fact conclusively in its favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 11 391 U.S. 253, 288–89 (1968), but it must “come forward with specific facts showing that 12 there is a genuine issue for trial,” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 13 475 U.S. 574, 587 (1986) (internal citation omitted). Thus, the “mere existence of a 14 scintilla of evidence” in support of the non-movant’s position is insufficient to defeat 15 summary judgment—“there must be evidence on which the jury could reasonably find for 16 the [non-movant].” Anderson, 477 U.S. at 252. 17 At summary judgment, the judge’s function is not to weigh the evidence and 18 determine the truth, but to determine whether there is a genuine issue for trial. Anderson, 19 477 U.S. at 249. Therefore, “[t]he evidence of the non-movant is to be believed, and all 20 justifiable inferences are to be drawn in his favor.” Id. at 255; see also Tolan v. Cotton, 21 572 U.S. 650, 660 (2014) (explaining the “fundamental principle that at the summary 22 judgment stage, reasonable inferences should be drawn in favor of the nonmoving party”). 23 “[W]hen simultaneous cross-motions for summary judgment on the same claim are before 24 the court, the court must consider the appropriate evidentiary material identified and 25 submitted in support of both motions, and in opposition to both motions, before ruling on 26 each of them.” Fair Hous. Council of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 27 1132, 1134 (9th Cir. 2001). The court need consider only the cited materials, but it may 28 consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 1 IV. Facts 2 The following material facts are undisputed, as set forth in the parties’ statements 3 of fact. 4 1. The Bowmans 5 Since 2017, Gilligan and Blanca Bowman have owned three parcels near the Gila 6 River known as the “Bowman Parcels,” which have Decree rights. (PSOF2 ¶¶ 1–7, Exhs. 7 13–14; DCSOF3 ¶¶ 1–7.) The last time the Bowman Parcels were irrigated to grow a crop 8 of any kind was in 1983 or earlier, and the only reason the Bowmans have not been farming 9 on or irrigating the parcels is because the Gila River washed them out in 1983, rendering 10 the land unsuitable for farming. (PSOF ¶¶ 9–11; DCSOF ¶¶ 9–11.) The Bowman Parcels, 11 which consist of “Bowman 1,” “Bowman 2,” and “Bowman 3,” remain unsuitable for 12 irrigation. (PSOF ¶ 13; DCSOF ¶ 13.) Specifically, “Bowman 1 consists of river-bottom 13 land with large 20-foot-plus trees, heavy brush, riparian vegetation, and a rough undulating 14 surface,” and will remain unsuitable for irrigation at least until the Gila River floods again 15 and deposits an estimated 12 inches of topsoil on the parcel (PSOF ¶¶ 13–15; DCSOF 16 ¶¶ 13–15); Bowman 2 and Bowman 3 are also river-bottom lands that will remain 17 unsuitable for irrigation until the Gila River floods again and deposits an estimated 24 18 inches of topsoil on the parcels (PSOF ¶¶ 16–17; DCSOF ¶¶ 16–17). The parties agree the 19 Gila River would need to have “high flows,” i.e., a flood, to deposit the topsoil needed to 20 make the Bowman Parcels suitable for irrigation; the parties, however, disagree as to how 21 probable such a flood is to occur in the future, as detailed below. (PSOF ¶¶ 18–19; DCSOF 22 ¶¶ 18–19.) 23 2. The Lunts 24 Since 2018, Samuel and Julee Lunt have owned parcels near the Gila River known 25 as the “Lunt Parcels,” which have Decree rights. (PSOF ¶¶ 23–25, Exh. 15; DCSOF ¶¶ 23– 26 25.) A series of floods in 1993 and 1994 moved the Gila River channel onto the Lunt 27
28 2The Community’s Statement of Material Facts is docketed at item 340. 3Defendants’ Controverting Statement of Facts is docketed at item 347. 1 Parcels, cutting a deep gully through the field and damaging the Lunt Parcels extensively. 2 (PSOF ¶ 27; DCSOF ¶ 27.) The parties stipulate that the Lunt Parcels have not been 3 irrigated for at least five years, but the record shows the Lunt Parcels have not been 4 irrigated since 1993.4 (PSOF ¶ 28–29; DCSOF ¶ 28–29.) In 2005, the Gila River flooded 5 again and deposited sufficient topsoil to allow cultivation of the Lunt Parcels, but rocks, 6 weeds, bushes, and flood debris remained present on the Lunt Parcels, and the ground was 7 uneven. (PSOF ¶¶ 30–31; DCSOF ¶¶ 30–31.) To make the parcels suitable for irrigation 8 and cultivation, the flood debris, trees, brush, and rocks needed to be removed, and the land 9 needed to be leveled. (PSOF ¶ 32; DCSOF ¶ 32.) 10 V. Applicable Law 11 “In Arizona, surface water is subject to the doctrine of prior appropriation.” In re 12 Gen. Adjudication of All Rts. to Use Water in Gila River Sys. & Source, 35 P.3d 68, 71 13 (Ariz. 2001) (“2001 Gila Adjudication”) (citing § 45-141(A)). Because beneficial use is 14 “the basis, measure and limit to the use of water,” § 45-141(B), “when the owner of a right 15 to the use of water ceases or fails to use the water appropriated for five successive years, 16 the right to the use shall cease, and the water shall revert to the public and shall again be 17 subject to appropriation,” “[e]xcept as otherwise provided in title [45] or in title 48.” 18 A.R.S. § 45-141(C). In other words, “[s]o long as utilization continues, the right remains 19 secure,” 2001 Gila Adjudication, 35 P.3d at 71, but if an owner of a water right does not 20 put the water to beneficial use for five years or longer, that water right is forfeited unless 21
22 4The Lunts dispute this to the extent that they “do not actual[ly] have personal 23 knowledge of whether the Lunt [P]arcels have not been irrigated since at least 1993” because they did not own the parcels then. (DCSOF ¶ 29.) However, the Lunts do not 24 dispute the parcels were washed out by the Gila River flooding in 1993 and 1994, or the veracity of the Community’s expert report. (PSOF Exh. 2 (“Westfall Report”) at 39; PSOF 25 ¶ 27; DCSOF ¶ 27). The Westfall Report and the images therein show the Lunt Parcels 26 being irrigated in 1991, and the 1997 and 2005 images show the parcels not being irrigated, as the river channel had moved onto the parcels in the 1997 image and the 2005 image 27 shows the parcels starting to be overgrown with vegetation. (Westfall Report Figures 13– 28 15.) Therefore, the Court finds no genuine dispute that the Lunt Parcels have not been irrigated at least since 1993. See Fed. R. Civ. P. 56(c)(1). 1 the owner has a sufficient reason for not using the water. 2 When the Complaint in this case was filed in 2020, Arizona law provided the 3 following reasons were “sufficient cause for nonuse”: 4 1. Drought, or other unavailability of water. 2. Active service in the armed forces of the United States 5 during military crisis. 6 3. Nonvoluntary service in the armed forces of the United States. 7 4. The operation of legal proceedings. 8 5. Federal, state or local laws imposing land or water use restrictions, or acreage limitations, or production quotas. 9 6. Compliance with an applicable conservation requirement 10 established by the director pursuant to chapter 2, article 9 of this title. 11 7. With respect to a water right appropriated for an irrigation 12 use, either of the following: (a) Pendency of a proceeding before a court or the 13 director to change the permitted use from irrigation to municipal or other uses pursuant to a 14 court decree or section 45-156 or to sever the right 15 from the land to which it is appurtenant and transfer it for municipal use pursuant to section 45- 16 172. 17 (b) After a change in the permitted use from irrigation to municipal pursuant to a court decree 18 or section 45-156 or 45-172, insufficient demand 19 for the water by the municipal users. 8. Any other reason that a court of competent jurisdiction 20 deems would warrant nonuse. 21 A.R.S. § 45-189(E). 22 As noted, the parties do not dispute they have “fail[ed] to use the water for five 23 successive years,” § 45-141(C), and they agree the Defendants are not at fault for the 24 conditions that led to their parcels being unsuitable for cultivation. The parties also agree 25 the subsection at issue here is the exception in § 45-189(E)(8) (the “catchall exception”). 26 (Doc. 339 at 6–7, 10–12; Doc. 346 at 8, 10, 13.) Therefore, the issue here is simply whether 27 this Court deems Defendants’ reasons for not using the water are sufficient to “warrant 28 nonuse” under the catchall exception. 1 Although the parties present no published decisions interpreting what “warrant[s] 2 nonuse” means, and the Court could find none, the Court finds guidance in Judge Bolton’s 3 orders about whether other landowners’ nonuse was excused under the catchall exception.5 4 In 2018, Judge Bolton considered at summary judgment whether the catchall exception 5 applied so as to excuse Freeport Minerals Corporation (“Freeport”)’s failure to use its water 6 for five years. See United States v. Gila Valley Irrigation Dist., 31-cv-00061-TUC-SRB 7 (Doc. 226 (“2018 GE 61 Order”)). Freeport argued its nonuse was warranted because the 8 natural movement of the Gila River had, through no fault of Freeport’s, rendered portions 9 of the parcels unsuitable for farming. Id. at 4–5. Judge Bolton found “no evidence in the 10 record supporting the exception’s application,” as Freeport had offered no evidence of a 11 “likely future shift in the course of the Gila River” and there was no evidence the parcels 12 would become irrigable following any such shift. Id. at 6. She further concluded it was 13 “not enough” for Freeport to “declare its intent to irrigate these parcels when and if a course 14 change occurs.” Id. Judge Bolton also explained § 45-189(E) furthers the beneficial use 15 of water and elimination of waste by “exempting only those situations in which beneficial 16 use is temporarily impossible” or “temporarily impracticable.” Id. at 6–7. Therefore, 17 Judge Bolton concluded Freeport’s nonuse was not excused under the catchall exception, 18 and declared its Decree rights forfeited. 19 In another case between the Community and Freeport, Judge Bolton again 20 considered at summary judgment whether Freeport’s Decree rights were forfeited for 21 nonuse. Gila River Indian Cmty. v. Freeport Mins. Corp., 17-cv-00626-TUC-SRB (Doc. 22 128. There, Freeport urged the Court to read the catchall exception as excusing “nonuse 23 occasioned by circumstances beyond the right holder’s control,” and specifically, “where, 24 as here[,] the Gila River shifts course and renders farmland unsuitable for farming.” Id. at 25 8–9. Again, Judge Bolton rejected that argument because Freeport had “offered no 26 evidence of a likely future shift in the course of the Gila River.” Id. at 9. She explained:
27 5The catchall exception was previously numbered as (E)(13) in the version in effect 28 at the time of Judge Bolton’s orders. The text of the catchall exception, however, has not changed. 1 “Without evidence of a likely future shift in the river’s course, Freeport cannot prove that 2 water obtained pursuant to its Decree rights will be put to beneficial use—the bedrock of 3 Arizona water law.” Id. 4 The Court finds no binding precedent on the application of the catchall exception in 5 federal court, and the parties do not identify, nor is the Court aware of, any such decisions 6 in Arizona state courts. Although Judge Bolton addressed whether the catchall exception 7 applied in the above cases, both involved land on which the Gila River had invaded and 8 remained present. The land at issue here is not presently invaded by the river or otherwise 9 presently flooded. Thus, it appears this Court is faced with a matter of first impression: 10 whether the catchall exception excuses nonuse after the river has moved off the land and 11 the flood waters have receded. 12 Based on the above, this Court concludes that whether § 45-189(E)(8) applies does 13 not turn merely on whether the event occasioning nonuse is beyond the right holder’s 14 control. Rather, there must be sufficient evidence showing the nonuse is likely to end in 15 the near future. As Judge Bolton explained, speculation that natural conditions may change 16 in the future due to unpredictable natural events like flooding, and the intent to put the 17 water to beneficial use again once such conditions change, are insufficient to warrant 18 nonuse under § 45-189(E)(8). 19 VI. Analysis 20 The Community moves for summary judgment, arguing Defendants have forfeited 21 their Decree rights pursuant to § 45-141(C) because their parcels have not been irrigated 22 for more than five years and Defendants’ nonuse is inexcusable under § 45-189(E)(8).6 23 (Doc. 339 at 5, 9.) Defendants oppose the Community’s Motion and, in their Response, 24 6The Community also argues neither the Bowmans nor the Lunts have applied to 25 sever and transfer their Decree rights, which the Bowmans and Lunts admit because they 26 do not own land to which they could transfer their Decree rights and because, even if they did, they assert the process is “burdensome, lengthy, expensive and unlikely to lead to a 27 positive result.” (Doc. 339 at 712; PSOF ¶¶ 12, 39; DCSOF ¶¶ 12, 39.) The Court finds 28 the availability of the sever-and-transfer process irrelevant to its reasoning in this specific case and, therefore, will not address these arguments. 1 also move for summary judgment, arguing nonuse “should be deemed excusable by this 2 Court” under § 45-189(E)(8), and to hold otherwise would “run[] against the plain 3 language and intent of the forfeiture statute itself.” (Doc. 346 at 4.) The Community filed 4 a Reply in support of their Motion and Response to Defendants’ Motion (Doc. 354), and 5 Defendants filed a Reply in support of their Motion (Doc. 358). The Community also filed 6 a Notice of Supplemental Authority.7 (Doc. 360.) 7 Because Defendants filed their cross-Motion in their Response, the Court addresses 8 the Motions together, considering the evidence submitting in support of and in opposition 9 to both Motions. See Fair Hous. Council of Riverside Cnty., 249 F.3d at 1134. The Court 10 addresses the claims against the Bowmans and Lunts in turn. 11 A. The Bowmans 12 The Community argues the undisputed facts show “there is no valid excuse for 13 nonuse” because the Bowman Parcels “are indefinitely unsuitable for irrigation.” (Doc. 14 339 at 5, 7.) According to the Community, the catchall exception “implements the doctrine 15 of beneficial use” and, therefore, “‘exempt[s] only those situations in which beneficial use 16 is temporarily impossible.’” (Id. at 7 (quoting 2018 GE 61 Order at 6).) Specifically, the 17 Community argues the Bowmans’ nonuse is not temporary, as the undisputed facts show 18 the Bowman Parcels will remain unirrigated until an unpredictable flood occurs and 19 7The Community’s Notice of Supplemental Authority points to a Gila Adjudication 20 case in Maricopa County Superior Court, In re: SLD-Paul Sale Inv. Co., No. W1-11-2805 21 (October 3, 2022), in which the Special Master applied A.R.S. § 45-189(E)(8). (Doc. 360.) That case involved whether water rights with a priority date before 1919 cannot be 22 forfeited, and whether the government exemption from estoppel and statute of limitations 23 defenses applies to forfeiture claims against the Arizona State Land Department (“ASLD”). In re: SLD-Paul Sale Inv. Co., No. W1-11-2805 at 3–6. There, the ASLD, through its 24 lessee, did not irrigate the land at issue for more than twenty years. Id. at 7–9. Because the ASLD knew the lessee was not irrigating and not only failed to cancel the lease, but 25 renewed the lease and failed to take “actions to preserve the land as agricultural land,” the 26 Special Master found the ASLD “ha[d] not established that sufficient reason exists to excuse nonuse of water for irrigation purposes and prevent a forfeiture of a claimed right 27 to irrigate the Land.” Id. at 10–11. The facts and legal issues in that case are 28 distinguishable and, in any event, the Special Master’s findings are not binding on this Court. 1 deposits sufficient topsoil to make the parcels farmable. (Id. at 8–9.) The Community 2 further asserts excusing the Bowmans’ nonuse under the catchall exception “would 3 eviscerate the doctrine of beneficial use” and “beneficial use would mean nothing if 4 landowners could fail to irrigate . . . for nearly forty years, based on hope that an 5 unpredictable, favorable flood event will happen to bring the right amount of topsoil to the 6 right place without also destroying the area further.” (Id. at 9.) 7 In response, the Bowmans argue their nonuse is excusable, “or should be deemed 8 excusable by this Court,” under § 45-189(E)(8) because they have “worked diligently” 9 “[s]ince the flood[]” so they could again farm the land. (Doc. 346 at 4, 9.) (Id.) The 10 Bowmans assert the “majority of [their] rehabilitation work on all their parcels was 11 completed between 1999 and 2011,” but the “rehabilitation work on the Bowman Parcels 12 specifically was commenced in 2011.” (DSOF8 ¶¶ 6–8; PCSOF9 ¶¶ 6–8.) Even accounting 13 for Mr. Bowman’s military service from 1995 to 1999, by the Bowmans’ own admission, 14 they did not begin rehabilitating the parcels at issue until 28 years after the parcels were 15 washed out by the 1983 flood. (DSOF ¶¶ 5, 8; PCSOF ¶¶ 5, 8.) The Bowmans estimate 16 the parcels “would be ready to farm in as little as 26 weeks following a sufficient high- 17 water event,” “once sufficient topsoil is in place.”10 (Doc. 346 at 6; DSOF ¶¶ 11–12.) The
18 8Defendants’ Statement of Additional Facts (“DSOF”) is docketed at item 347 at 19 15–19. 9The Community’s Controverting Statement of Material Facts (“PCSOF”) is 20 docketed at item 355. 21 10The Bowmans assert: “According to their estimates, the Bowman [P]arcels would be ready to farm in as little as 26 weeks following a sufficient high-water event.” (DSOF 22 ¶ 11, Exh. 2 ¶ 13.) The Community objects to this statement, arguing it should be 23 precluded under Federal Rule of Civil Procedure 37(c)(1) because it relies on Gilligan Bowman’s March 3 2022 Declaration, which was disclosed long after the close of 24 discovery. (PCSOF ¶ 11.) Alternatively, the Community argues that because the declaration was disclosed after fact discovery closed, “facts necessary to address [these 25 statements] are unavailable to the Community” under Rule 56(d) of the Federal Rules of 26 Civil Procedure. (PCSOF ¶ 11.) Although a party “is not allowed to use” untimely disclosed information “to supply evidence on a motion,” the failure to timely disclose can 27 be excused if “substantially justified” or “harmless.” Fed. R. Civ. P. 37(c)(1). The Court 28 finds no harm. And, the Community has not shown “specified reasons” “it cannot present facts essential to justify its opposition” to these statements under Rule 56(d). Therefore, 1 Bowmans contend their nonuse is temporary because, according to their expert, 2 Mr. Ronnerud, “a sufficient high-water event is due to occur at any time.” (Doc. 346 at 6; 3 PSOF Exh. 4 (“Ronnerud Depo.”) at 50:25–518. ) The Bowmans further argue, “Arizona 4 law excuses nonuse from forfeiture when beneficial use is temporarily impracticable,” and, 5 given their rehabilitation efforts described above, they have done all they can to ensure that 6 temporary impracticability is as short as possible. (Doc. 346 at 9 (quoting 2018 GE 61 7 Order).) 8 In reply, the Community argues the Bowmans’ “[t]hirty-seven years of nonuse (and 9 counting) is not temporary” and is inconsistent with the doctrine of beneficial use. (Doc. 10 354 at 1–6.) The Community relies heavily on Judge Bolton’s 2018 and 2020 orders 11 described above for the proposition that § 45-189(E)(8) is intended to promote beneficial 12 use “by exempting only those situations where beneficial use is temporarily impossible” or 13 “temporarily impracticable,” and where the owner presents “evidence that its lands are only 14 temporarily unsuitable for cultivation.” (Id. at 2–3.) In other words, the Community 15 argues: “the Decree, by incorporating the doctrine of beneficial use, does not allow for 16 unused rights to be held in reserve indefinitely for an uncertain future event.” (Id. at 5.) 17 The Community asserts the question of whether nonuse is temporary “must be evaluated 18 against a presumptive five-year statutory limit for nonuse,” and the Bowmans’ 37 years— 19 more than seven times the five-year statutory period—is not consistent with beneficial use. 20 (Id. at 4.) The Community further contends the Bowmans’ nonuse is indefinite because 21 they “have no plans” to bring in the topsoil needed to make the land suitable for cultivation, 22 and “nobody knows how long it will be before the topsoil needed for these lands to be 23 irrigable happens to flow down the Gila River to exactly where it is needed.” (Id.) 24 In reply, the Bowmans argue “temporary impracticability is the correct standard,” 25 “‘temporary’ does not necessarily mean of short duration,” and the Community 26 “erroneously adds requirements” to § 45-189(E)(8) by suggesting the question of whether
27 the Court declines to preclude this statement as a sanction. The Court finds there is no 28 genuine dispute that the Bowmans estimate it will take them approximately 26 weeks to start farming again after a sufficient flood. 1 nonuse is temporary must be evaluated against the five-year forfeiture period. (Doc. 358 2 at 4.) The Bowmans assert that not only is there no time period in any of the exceptions in 3 § 45-189(E), but all exceptions are assumed to be for periods longer than five years because 4 otherwise, there would be no need for exceptions. (Id.) The Bowmans further argue 5 “choosing not to irrigate their land is consistent with beneficial use” because it would be 6 “wasteful for them to attempt to use the water on land that cannot grow crops.” (Id. 7 (emphasis added).) The Bowmans contend Judge Bolton’s 2018 GE 61 Order is non- 8 binding and distinguishable, but “its core reasoning supports [their] position.” (Id. at 6.) 9 According to the Bowmans, the 2018 Order is distinguishable because, in that case, there 10 was “no evidence . . . of a likely future shift in the course of the Gila River,” but here, 11 “there is evidence that the conditions of [the Bowmans]’ land are temporary” because their 12 expert, Mr. Ronnerud, “opined on likely future events” and the “temporary condition” of 13 the parcels lacking sufficient topsoil “will reverse after a sufficient high-water event 14 deposits silt [topsoil] on the parcels.” (Id. at 7.) The Bowmans also assert the Community 15 misrepresented Mr. Ronnerud’s testimony about the probability of such a high-water event. 16 (Id. at 7–8.) 17 First, the Court finds there are no genuine disputes of material fact as to the 18 Bowmans. Second, based on those undisputed facts, the Court concludes the Bowmans’ 19 reasons for not using their water for almost forty years at the time of this Order do not 20 warrant nonuse under § 45-189(E)(8). Although the 1983 flood was certainly beyond their 21 control, the Bowmans have not provided sufficient evidence showing their nonuse is 22 temporary, nor have they provided a reason that warrants nonuse under § 45-189(E)(8). In 23 particular, the Court notes that despite the Bowmans providing estimates of the costs and 24 man-hours required to rehabilitate the parcels for farming, their estimates are for “once a 25 high-water event occurs that deposits the necessary levels of topsoil,” and includes only 26 the man hours, equipment, and fuel costs “to accomplish the remaining vegetation removal 27 and grading once sufficient topsoil is in place.” (DSOF ¶¶ 10–12 (emphases added).) In 28 other words, the Bowmans admit they are waiting to finish rehabilitating their parcels until 1 a “sufficient high-water event” not only occurs, but leaves the right amount of topsoil in 2 the right places. In evaluating the Community’s Motion, the Court believes the Bowmans’ 3 evidence, but finds it unreasonable to infer that such a flood is likely to occur in the near 4 future so as to make the Bowmans’ nonuse temporary. See Tolan, 572 U.S. at 660. 5 Even if a flood is “due to occur at any time” as they contend, the Bowmans have 6 presented no evidence about what such an event will look like. And despite building “dikes 7 to direct and retain high-flow waters to obtain maximum silt deposits,” the Court finds it 8 highly speculative to claim an unpredictable high-flow event will deposit sufficient topsoil 9 on the Bowman Parcels in a manner that will allow them to farm the land again. (DSOF 10 ¶ 7; PCSOF ¶ 7.) Indeed, the 1983 flood not only washed out and ruined the Bowman 11 Parcels, but the Gila River channel moved. (PSOF, Exh. 1 (“Ronnerud Report”) at 3.) 12 And, according to the Bowman’s own expert, “Periodic channel movement is expected 13 with a threaded river” like the Gila. (Id.) That is, the Bowmans’ own evidence suggests 14 the outcome of any such high-water event is unpredictable, and could further damage the 15 parcels or even move the channel back onto the parcels again. Although the Court believes 16 the veracity of Mr. Ronnerud’s report, having reviewed his deposition, the Court cannot 17 reasonably infer that a flood that brings the right amount of silt to the right places and does 18 not further damage the parcels is likely to occur in the near future. (Ronnerud Report at 9, 19 16.) Indeed, after acknowledging “no one knows” when a flood will occur, Mr. Ronnerud 20 agreed floods bring a variety of material with them, “[e]very one’s different,” he didn’t 21 know “what [the future] floods are going to look like,” no one knows how the silt will be 22 distributed or what path the flood will take, and it is not possible to predict where the river 23 will deposit the silt. (Ronnerud Depo. at 50:2–53:3.) Therefore, the Court concludes the 24 Bowmans’ assertion that the flood they are waiting for is due at any time is too speculative 25 to demonstrate their 40-plus years of nonuse is temporary. 26 Although the Bowmans cannot be blamed for the Gila River flooding and ripping 27 away soil suitable for cultivation, this phenomenon did not prevent them from 28 rehabilitating the land and bringing in topsoil for 40 years. Having admitted to nonuse for 1 more than five years and having failed to demonstrate the Bowman Parcels are only 2 temporarily unsuitable for cultivation because they admit they are waiting for another 3 speculative flood to deposit the needed topsoil, the Bowmans have not provided a reason 4 this Court deems warrants nonuse under § 45-189(E)(8). Therefore, the Community is 5 entitled to judgment; the Bowmans have forfeited their Decree rights. 6 B. The Lunts 7 The Community argues there is no “legal excuse for nonuse of the Decree rights” 8 because the Lunts “failed to prepare the land for cultivation from 2005 to 2020.” (Doc. 9 339 at 10.) The Community asserts the Lunt Parcels “could have been put back into 10 cultivation at any time since 2005 in a matter of months if adequate resources had been 11 devoted to clearing and leveling the land.”11 (Id.) According to the Community, the 12 doctrine of beneficial use requires a holder of a water right to “do all that is possible and 13 necessary to put the water right to use” or else “the right is forfeited.” (Id.) The 14 Community further argues the lack of necessary time or money, or poor health are not 15 sufficient reasons to excuse nonuse under § 45-189(E)(8) for two reasons. First, § 45- 16 189(E)(8) “does not excuse those who fail to use a right” “regardless of their personal 17 reasons for not doing so,” and other Western states that apply the beneficial use doctrine 18 “are in accord that the doctrine of beneficial use does not vary with individual personal 19 circumstances.” (Id. at 10–11.) Second, even if personal circumstances could constitute a 20 valid excuse for nonuse, the Lunt Parcels could have been put back into production many 21 years ago if adequate resources had been devoted and, to the extent the Lunts may argue 22 23 11The Lunts dispute this, arguing “a lack of adequate resources, including available time, was the basis for not being able to get the parcels back into production.” (DCSOF 24 ¶ 36.) The Lunts, however, do not dispute their expert, Mr. Ronnerud, estimated “three to six months should be adequate to clear and remove the debris,” depending on the farmer’s 25 personal circumstances. (PSOF ¶ 36, Ronnerud Depo. at 40:10–22, 43:4–15.) Mr. 26 Ronnerud also noted the 3–6 months is just for clearing and grading the land, and does not include “the infrastructure [needed] in order to put water on the land.” (Id. at 43:4–11.) 27 Having reviewed Mr. Ronnerud’s deposition, the Court find no genuine dispute here. That 28 the Lunts claim they and their predecessor-in-interest lacked the resources is not relevant to how long it would take if such resources were available and devoted to the effort. 1 they or their predecessor lacked such resources, the Community submits the Lunts have 2 provided no such evidence. (Id. at 10.) 3 In response, the Lunts argue their nonuse should be excused because they have 4 “worked diligently to reclaim their parcels despite the challenge and expense,”12 “as 5 economic circumstances and personal circumstances have allowed.” (Id. Doc. 346 at 4, 6, 6 11.) The Lunts point to the phrase “temporarily impracticable” in Judge Bolton’s 2018 GE 7 61 Order and argue that, according to Black’s Law Dictionary, “impracticable” means: “a 8 condition that ‘though possible . . . would cause extreme and unreasonable difficulty.’” 9 (Id. at 12.)13 They assert “[h]aving [them] clear their lands and begin cultivating between 10 March 2015 and 2020 (the time period at issue in this case) certainly fits the definition of 11 impracticable” because the Lunts did not acquire the land until 2018 and, as a young family, 12 “it would have been extremely difficult and unduly costly to rehabilitate the relatively small 13 parcels at issue in this case,” “[e]specially with all the other costs and obligations they had 14 incurred when acquiring the farm.” (Id. at 12.) Lastly, the Lunts argue their nonuse is not 15 only temporary, but “nearly over” as they expect to have their parcels “ready for production 16
17 12The Community objects to this as “characterizations and opinion, rather than an assertion of material fact” and argues there is no evidence the Lunts performed any 18 rehabilitation work until 2020. (PCSOF ¶ 24, citing Westfall Report and PSOF ¶ 37; 19 DSOF ¶ 24; DSOF Exh, 3 (Samuel Lunt Declaration) ¶ 6.) Having reviewed the record, the Court also finds no evidence showing such work began before 2020. Indeed, the 20 January 2020 aerial image in the Westfall Report shows the parcels overgrown with 21 vegetation; the March 2020 image shows the land having been mostly cleared. (Westfall Report Figures 17–18.) The Court agrees this statement is more of a characterization or 22 opinion than a proper assertion of fact, and concludes the Lunts have not carried their 23 burden of establishing this as a fact. See Nissan Fire & Marine Ins., 210 F.3d at 1102; Fed. R. Civ. P. 56(c)(2). 24 13Black’s Law Dictionary does not define “impracticable,” but rather defines “impracticability” as, in the context of contracts: “a fact or circumstance that excuses a 25 party from performing an act, esp. a contractual duty, because (though possible) it would 26 cause extreme and unreasonable difficulty.” Impracticability, Black’s Law Dictionary (8th ed. 2004). The Court notes this definition is specific to contract law and the issue here is 27 not contract performance—it is whether this Court deems Defendants’ reasons for not 28 irrigating “warrant nonuse” under the statute. Defendants’ reliance on this definition is inapposite. 1 by the end of 2022.”14 (Id. at 13; DSOF ¶¶ 23–25, Exh. 3 (Samuel Lunt Declaration) ¶ 7). 2 In reply, the Community asserts the Lunts’ position “would change the forfeiture 3 rule from one of beneficial use into a fact-intensive, subjective inquiry into whether they 4 used their money and time wisely doing other things [instead of rehabilitating the parcels],” 5 and “[t]here is no authority for doing this,” as personal circumstances “are not, as a matter 6 of law, a basis for finding that nonuse is ‘warrant[ed]’ under the doctrine of beneficial use.” 7 (Doc. 354 at 11.) Citing this Court’s December 8, 2020 Order in this case (Doc. 248 at 6), 8 the Community reiterates: “The doctrine of beneficial use strictly allocates a scarce 9 resource based on usage.” (Id. at 12.) The Community also notes the Lunts have no answer 10 to the out-of-state cases cited in the Community’s Motion and “ignore that Arizona courts 11 regularly rely on cases from other Western states applying the doctrine of beneficial use.” 12 (Id.) Additionally, the Community asserts the only “personal excuses” for nonuse are 13 periods of active and involuntary military service, see § 45-189(E)(2), (E)(3), but nothing 14 in the statute “places personal financial or health circumstances on par with active or 15 involuntary military service,” and there is no justification for those trumping the doctrine 16 of beneficial use. (Id. at 13.) The Community further argues: “The new, need-based 17 doctrine of best efforts that the Lunts are proposing as a substitute for the doctrine of 18 beneficial use would give the Court an intolerably subjective task” of “evaluating the 19 wisdom and justification of the Lunts’ and their predecessors’ decisions, over fifteen years, 20 to spend their time and money on things other than cultivating and irrigating these lands.” 21 (Id.) And, even if the Court found personal circumstances could excuse a minor delay, the 22 Community contends the delay here is excessive and “the Lunts have failed to make an 23 14The Community disputes this estimate, citing to Samuel Lunt’s deposition where 24 he stated he “couldn’t give [] a date” by which he thought the parcels would be ready for 25 cultivation or irrigation because he “d[id]n’t know how long it would take,” but he had “a five-year plan to put it back into production.” (DCSOF ¶ 25; PSOF Exh. 6 (Samuel Lunt 26 Deposition) at 14:20–15:10.) Having reviewed Samuel Lunt’s deposition and his 27 Declaration, the Court finds there is no genuine dispute that the Lunts estimate their parcels will be ready for production by the end of 2022. 28 1 adequate showing that both they and their predecessors in interest were personally justified 2 in not irrigating these lands,” while they irrigated other lands. (Id. at 14.) 3 Because Defendants’ arguments in their Reply described above apply to both the 4 Bowmans and the Lunts, the Court refers to their arguments in Section VI(A) and will not 5 repeat them here. Specific to the Lunt Parcels, however, the Lunts reiterate their 6 rehabilitation efforts are nearly complete and point to photos taken by the Community’s 7 expert showing their progress. (Doc. 358 at 8 (citing PSOF Exh. 2 (“Westfall Report”) at 8 16–24).) As to the Community’s argument there is no authority to support a “fact- 9 intensive, subjective inquiry into whether [the Lunts] used their money and time wisely” 10 in rehabilitating the land, the Lunts argue this “ignores the broad statutory language that 11 calls for the court to look at any reason that would warrant nonuse.” (Id.) The Lunts assert 12 that although the Arizona forfeiture statute is not fact-intensive, “the exceptions to that rule 13 may be.” (Id.) The Lunts point out that many of the enumerated exceptions in § 45-189(E) 14 “do not look at the condition of the land” and the term “any other reason” is not limited to 15 only considering the conditions of the land. (Id.) As to the non-Arizona cases the 16 Community cites, the Lunts contend they are irrelevant, as none “evaluated a broad catchall 17 provision like Arizona’s.” (Id.) Finally, the Lunts assert that while the Community appears 18 to suggest there is a distinction between a minor delay and an “excessive” one, the statute 19 makes no such distinction. (Id. at 9.) 20 Believing the Lunts’ evidence and drawing all reasonable inferences in their favor, 21 the Court concludes the Lunts’ nonuse is not warranted under § 45-189(E)(8) because their 22 reasons are not consistent with beneficial use. Like the Bowmans, the Lunts’ parcels were 23 rendered unfarmable through no fault of their own. Unlike the Bowmans who are waiting 24 for an unpredictable, speculative flood, the Lunt Parcels have sat for over fifteen years 25 unirrigated because the Lunts and their predecessor did not rehabilitate them and put them 26 back into production sooner. As Judge Bolton explained in her 2018 GE 61 Order, the 27 catchall exception furthers the goal of efficiently allocating water “by exempting only those 28 situations in which beneficial use is temporarily impossible” or “temporarily 1 impracticable.” 2018 GE 61 Order at 6–7. Although beneficial use was temporarily 2 impossible after the Gila River flooded in the 1990s and remained on the Lunt Parcels, the 3 undisputed evidence shows the river had moved off the parcels and the parcels were dry 4 again in 2005. (Westfall Report, Figures 14–15.) The only obstacle to putting the parcels 5 back into production the Lunts have identified is their lack of resources and perhaps their 6 predecessor’s. Although the Lunts assert they and their predecessor lacked the resources 7 to rehabilitate the land sooner, they do not provide sufficient evidence for the Court to 8 evaluate that claim. In the absence of more guidance from the Legislature or any Arizona 9 courts interpreting this statute in such a manner, this Court declines to decide whether the 10 lack of resources can never warrant nonuse under the catchall exception. However, based 11 on the record here, the Court concludes the Lunts’ nonuse is inconsistent with the 12 overarching principle that governs water law in Arizona: efficiently allocating this 13 increasingly scarce and precious resource to those who put it to beneficial use. 14 Accordingly, the Lunts have not provided a reason that warrants nonuse under § 45- 15 189(E)(8), and the Community has demonstrated it is entitled to judgment as a matter of 16 law. The Lunts’ Decree rights are forfeited. 17 VII. Conclusion 18 Based on the undisputed material facts and believing Defendants’ evidence and 19 drawing reasonable inferences in their favor, the Court concludes the Defendants’ reasons 20 do not warrant nonuse and, therefore, the Community is entitled to judgment as a matter of 21 law on its forfeiture claims against the Bowmans and the Lunts. 22 Accordingly, 23 IT IS ORDERED: 24 (1) The Community’s Motion for Summary Judgement (Doc. 339) is granted. 25 (2) Defendants’ Cross-Motion for Summary Judgment (Doc. 346) is denied. 26 . . . . 27 . . . . 28 . . . . 1 (3) The Community shall lodge a proposed form of order, as well as legal 2 descriptions and maps indicating the Decree rights to be declared as forfeited 3 and extinguished from the Globe Equity No. 59 Decree. The Community shall 4 file such proposed form of order on or before Friday, March 31, 2023. 5 Dated this 24th day of March, 2023. 6 7
9 J vinited States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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