United States v. Sunset Ditch Company , 472 F. App'x 472 ( 2012 )

FILED
NOT FOR PUBLICATION MAR 19 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-16968
Plaintiff - Appellee, D.C. No. 4:31-cv-00061-SRB
SAN CARLOS APACHE TRIBE OF
ARIZONA; GILA RIVER INDIAN MEMORANDUM *
COMMUNITY,
Intervenor-Plaintiffs -
Appellees,
and
SAN CARLOS IRRIGATION AND
DRAINAGE DISTRICT,
Intervenor-Plaintiff,
v.
SUNSET DITCH COMPANY,
Defendant,
and
FREEPORT MCMORAN
CORPORATION,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Movant - Appellant.,
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted December 5, 2011
San Francisco, California
Before: SCHROEDER, O’SCANNLAIN, and BERZON, Circuit Judges.
This is a protective appeal by Freeport McMoRan Corp. (“Freeport”) from
the district court’s interlocutory order in a proceeding to adjudicate Freeport’s
applications to sever water rights from their appurtenant lands, and transfer those
rights to other lands. The 2007 settlement of claims concerning the unauthorized
pumping of water in the Upper Valley of the Gila River permitted the defendant
water users to file such “sever-and-transfer” applications within a limited time
period. The district court separated the Freeport applications from those of the
other Upper Valley applicants, consolidating Freeport’s applications in a
subproceeding on a new docket.
When this appeal was filed, the district court had decided only 10 of the 59
Freeport applications. Freeport contends there is no appellate jurisdiction to hear
any part of its protective appeal. We agree.
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Freeport challenges the district court’s order denying, on the merits, those 10
applications. The district court held that Freeport had not satisfied its prima facie
burden of showing that the proposed transfers would result in no injury to other
water rights users. The district court’s order is not final for purposes of 28 U.S.C.
§ 1291, because it deals with only 10 of the applications and thus “do[es] not
resolve all of the issues in the post-judgment proceeding.” Cordoza v. Pacific
States Steel Corp., 320 F.3d 989, 996 (9th Cir. 2003). The district court still must
resolve issues related to Freeport’s other applications, as well as issues related to
other applicants. The district court therefore denied the Gila River Indian
Community’s request for certification under Fed. R. Civ. P. 54(b). See Huene v.
United States, 743 F.2d 703, 705 (9th Cir. 1984). At this stage, however, there is
no jurisdiction under 28 U.S.C. § 1291 for us to review this order. The order also
does not relate to injunctive relief, so jurisdiction is also lacking under 28 U.S.C.
§ 1292(a)(1).
For similar reasons, we lack jurisdiction to review the district court’s order
denying Freeport’s attempt to correct facial deficiencies in its sever-and-transfer
applications by filing amended papers with the district court. The order is neither a
partial nor a final judgment.
3
The Gila River Indian Community argues there is appellate jurisdiction to
review the abandonment ruling, because that ruling extinguished water rights
specifically identified in the Globe Equity Decree, and therefore modifies an
injunction within the meaning of § 1292(a)(1). The decree was an adjudication of
rights and not entirely injunctive in nature. The ruling appealed here does not
appear to relate to an injunctive aspect of the decree, and even if it did, it would not
come within § 1292(a)(1)’s grant of appellate jurisdiction. See Carson v. American
Brands, 450 U.S. 79, 84 (1981); Thompson v. Enomoto, 815 F.2d 1323, 1327 (9th
Cir. 1987). To fall within § 1292(a)(1), an order purporting to modify a consent
decree would need to have the “practical effect of [modifying] an injunction”; have
“serious, perhaps irreparable consequence[s]” to the appellant; and “be effectually
challenged only by immediate appeal.” Carson, 450 U.S. at 84 (internal quotation
marks omitted). Like the order appealed in Thompson, the abandonment ruling
here did not modify the decree. It was “implicitly contemplate[d]” by the
underlying consent decree. 815 F.2d at 1327. The Globe Equity Decree provides
that decreed water-rights owners may, subject to certain limitations, “change the
point of diversion . . . so far as they may do so without injury to the rights of other
parties.” Article XI. The party filing a sever-and-transfer application must show it
has a “right to transfer.” Change-in-Use Rule § 4(B). The abandonment ruling,
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therefore, bears on whether Freeport has a right to transfer the water rights in
dispute. The district court’s ruling, like the order in Thompson, was “pursuant to,
and not a modification of, the original consent decree.” Thompson, 815 F.2d at
1327. It therefore fails the first Carson factor. Id. The abandonment ruling,
moreover, can be effectually challenged at a later stage of the litigation, after the
district court decides the remaining sever-and-transfer applications, so it fails the
third factor as well.
DISMISSED.
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