Troubled Waters
The Arizona Water Rights Settlement Act of 2004 was supposed to settle the conflict, instead the fight continues.
By Liz Foster, Arizona Farm Bureau, with contributions by Julie Murphree, Arizona Farm Bureau
As settlers moved west to build a life they had to compete with weather, pests and conflicts with neighboring tribes. It made settling difficult. Most people learned about these conflicts in history books. In the Gila Valley of southeast Arizona, which is made up of Graham and Greenlee counties, not much has changed. They still are dealing with weather, pests and conflicts, this time over water rights.
Today, instead of the conflict erupting at a pioneer’s homestead it’s in the courtroom and Arizona agriculture suffers as a result.
Gila Valley farmers and ranchers’ roots run deep. Many of the younger Gila Valley farmers are 4th- or 5th- generation and are farming in partnerships with their parents and even grandparents. Farming is what settled the valley 150 years ago while it was still a territory.
Nearly everyone in Arizona agriculture and especially everyone living in and around the Gila Valley have heard of the Arizona Water Rights Settlement Act of 2004. Most people believe that the water dispute between various Indian communities and the farmers of the Gila Valley irrigation districts was settled when Congress passed the settlement and then President George W. Bush signed it into law. Farmers in the area will tell you it became law but nothing has been settled.
Some Background
In some ways, the Gila Valley between Globe and Duncan seems a microcosm of the entire state. Along a 70-mile stretch of highway you can take in an array of rugged mountains, pass through one of the largest Native American reservations in Arizona, fish at an enormous lake, admire fertile farming communities contributing to Arizona agriculture that date from pioneer days and visit the most advanced observatory in the world.
But this idyllic valley’s troubled water history continues to brew as the Indian reservations in Arizona and private agriculture land continue to become increasingly important, especially for Arizona agriculture. With approximately 28% of Arizona lands held in trust by the federal government on behalf of Native Americans, determination of Indian water rights and water use by Indian communities can have a significant impact on other state water users.
As in most states, negotiation of Indian water rights claims has been litigation-driven in Arizona. Indian water right claims are now typically based on “reserved water rights” for federal reservations as a result of the Winters Doctrine, a doctrine established as a result of the 1908 landmark Winters v. United States U.S. Supreme Court case because for the first time the federal government deviated from the established convention that water law was purely a state matter.
During the period the federal government was establishing Indian reservations, it did not expressly claim associated water rights for the land set aside for tribes. Winters v. United States found that a federal reservation includes an amount of water necessary to fulfill the reservation’s purpose. Priority dates are based on the date the reservation treaty was enacted, act of Congress, or Executive Order establishing the reservation. In 1963, the U.S. Supreme Court in Arizona v. California further attempted to define reserved water rights for Indian reservations by including the standard of practicably irrigable acreage (PIA) as a method of quantifying the right. However in 2001, the Arizona Supreme Court rejected PIA as the sole standard for qualification and found the Indian reserved rights must account for the present and future needs of the reservation as a tribal homeland.
What arose from these court cases to quantify Indian water rights claims, however, has become an expensive and lengthy litigation processes for all parties involved. The 2004 water rights settlements and a decree that dates back to 1935 are the central attempts to resolve this valley’s water troubles.
The right to use Gila River water is governed by the Globe Equity Decree, court decreed water rights that are considered strongest to defend. In 1935 the U.S. District Court entered a consent decree (Globe Equity No. 59) for all diversions of the mainstem of the Gila River from confluence with the Salt River to the headwaters in New Mexico, including the Gila River and San Carlos Apache reservations, and non-Indian landowners below and above Coolidge Dam. It awarded rights to use water on lands within the Gila River Indian Reservation with a priority date of “time immemorial” and also awarded rights to the San Carlos Apache Tribe with a priority date of 1846. Rights and priority dates were established for non-Indian land in the area too.
The 1935 compact said that all the parties on the Gila River fall under federal jurisdiction for water whereas the rest of the state is under state control. While complex and detailed, the decree attempted to settle several issues on the river and spelled out each group’s (mines, tribes and non-Indian users) water use and how to divert it.
“The Gila Valley is the only place in the country where the water is measured when it comes into the valley and when it goes out,” explained Dennis Layton, Gila Valley farmer and former Graham County Farm Bureau leader and current member. “In the decree the farmers have what is referred to as a consumptive-use factor. All that means is if more water comes in than goes out, we have consumed it. We haven’t, but that is in the decree. If we consume what amounts to 120,000-acre-feet of water that comes into the area that doesn’t come out, they shut us out.”
The Decree Fails to Settle the Troubled Waters in Gila Valley
In the 1980s the Gila River Indian Community sued Gila Valley and Franklin irrigation districts for more water than the Gila River watershed generates. In Gila River Pima-Maricopa Indian Community v. United States, the tribe argued that the government had breached the "fair and honorable dealings" clause by failing to stop non-Indian upstream diversions of Gila River water beginning in 1868. The Court held that the government had a duty to take legal action to stop these diversions, or, in the alternative, provide the Tribe with an alternate supply of water, but held plaintiff was entitled to only the amount of water needed to irrigate the acreage the Tribe had historically irrigated before the diversions began. The Court rejected plaintiff's argument that damages be measured by the amount of water necessary to irrigate all the "practicably irrigable" acreage on the reservation.
Over the years, defendants in the case, Gila Valley farmers, negotiated what they thought was a settlement (the Arizona Water Rights Settlement Act of 2004) with the tribe and the U.S. government that included the retirement of 3,000 acres of land by the farmers within the two irrigation districts. Ironically, the San Carlos Apache tribe did not sign on to the settlement but they are participating in yet another suit against the Gila Valley farmers.
Without doing justice to all the events taking place as it relates to water issues, Gila Valley famers wonder if they’ll even have water in the future for farming. For many in the valley, the question is not when but if the water issues will ever be resolved between the parties.
A pending case with the tribes draws any witness to the events to muse that the United States is suing itself on behalf of a sovereign nation within a sovereign nation. If you go to a hearing you will observe the case marked as United States vs. Gila Valley Irrigation Districts. There are lawyers for the Gila River Indian Community, the San Carlos Apache Community, and the U.S. Department of Justice on one side (comprised of a couple dozen lawyers taxpayers are paying for) and about four lawyers representing both the Gila Valley and Franklin Irrigation Districts on the other.
The current litigation is focused on transfers and pumps.
During these many years of litigation, the irrigation districts have spent millions of dollars defending and complying with what’s written in the 1935 decree. Gila Valley farmers have given up some things such as the ability to take double the decree if the river is running at fuller capacity, i.e. at flood stage. They also gave up the ability to use the water coming from a thunderstorm on San Simon or the other tributaries that make up the Gila River. All of the extra water must pass through the valley to be used by the users on the Lower Gila River.
Says Gila Valley Farmer Dennis Layton, “Parties on behalf of the tribes know they can’t do anything about the way farmers divert surface water because it’s spelled out in the 1935 decree. If surface water goes on decreed land, lawyers make it more difficult to challenge how it’s used. As a result, litigants are challenging the use of pumps to ultimately shut off the pumps.”
An even more critical issue within the lawsuit has been the water transfers. In the 2004 settlement, Gila Valley farmers were given six months to transfer water from decreed ground no longer being used for the hot lands within farms (any “hot” acres are lands not covered by the 1935 decree). The promise under the 2004 settlement was that any transfers done within those six months would not be contested by the tribes or the government. Quickly, 419 applications were submitted. With each application there was a $500 filing fee and some farmers had to file multiple applications.
After the many transfer applications had been filed, the tribes and the government went before the judge and objected to each one contending the farmers and irrigation districts did not fill out the applications correctly. The tribes and government had numerous, if frivolous, objections.
The entire litigation process is rife with tactics to undermine Gila Valley farmers’ efforts to comply with the law.
Eventually the irrigation districts will have to go back to Congress to get a new law or settlement made with the San Carlos Apaches due to the fact that they did not sign on to the settlement. This starts the process all over again for Gila Valley farmers since the Apaches are not signatories to the current settlement that is already in law.
Though efforts have been made, the tribes and the government refuse to discuss possible solutions to the valley’s water use. Even the suggestion by the farmers and irrigation districts to remove the heavy water-usage salt cedar groves has been shot down.
“There probably is enough water in this river system from the Coolidge Dam into New Mexico if the Salt Cedar wasn’t here,” says Dennis Layton. “The system would be enhanced.”
The Salt Cedar will remain, however, since the Willow Flycatcher, which is on the Endangered Species List, love the trees. Concludes Dennis Layton, “When the government takes control, no one benefits. The water is used so we can keep the Flycatcher healthy. I haven’t seen one down there. The birds were there before the Salt Cedar grew the river shut. They will find somewhere else to live besides the Salt Cedar.”
The earnest hope of the Gila Valley irrigation districts joining Senator Kyl on the Arizona Water Rights Settlement Act of 2004 was that the very litigation challenges they’re in the midst of would be avoided. While the farmers had to give up a lot, they made those sacrifices so they didn’t risk losing all of their water rights from possible court rulings against them. Obviously this has not happened.
Today, Gila Valley farmers hope for final resolution between the tribes. If not, they’re hoping the state of Arizona might provide support.
When talking with the farming community in the valley, you understand their pain. They also recognize the rights of the tribes to water. They struggle mainly with how the United States government is addressing the problem and in the meantime wasting the valuable resources that all parties, left to farm, would maximize.
The Next Generation Inherits the Challenge
The 4th- and 5th-generation farmers in the valley chose to inherit the water battle once they decided to enter the family business. Both Gila Valley farmers Justin Layton and Jay Larson wanted to go into farming. They are both 4th-generation cotton farmers who farm with their fathers.
Larson remarks, “We always knew it was an issue, but we thought there was a solution. We thought the settlement was an end but really it was a beginning.”
Justin Layton also plans to continue farming but he fears the U.S. government and the Indian tribes are not going to stop until all the farmers are out of business. “They want our water now. Once they have that are they going to come after our land or our money? Growing up we were under a different set of rules. We are living by rules that aren’t in place. It makes it interesting to farm.”
To combat the challenges, several of the Gila Valley farmers are doing everything from installing drip irrigation systems for their cotton fields to land laser leveling.
Neither are new technologies to the valley, but it is technology that is growing and the biggest benefit means greater efficiency and less water. According to Dennis Layton, the farmers didn’t begin using the drip system simply to conserve water. “Since we are limited to six-acre-feet for an entire year it’s an efficiency thing all the way around. We saved money because we use half the water and less fertilizers and less labor because you don’t need someone to change the water.”
After hearing their story we might ask why anyone would want to farm in the Gila Valley when faced with the fight over keeping the water especially if they are fighting the U.S. government. “It’s not right to pick on individuals and bleed them dry,” says Justin Layton. “The government needs to settle but not exploit the farmers to do it.”
For many Gila Valley farmers, it’s not just about the water; it’s about a way of life. It’s about drawing from the potential of the valley to build a community and a future.
“We are always optimists,” Dennis Layton confides. “We have to deal with the lawyers every day. The attorneys are going to break us and they don’t care if it takes 20 to 50 years. We are a little district, between us and Franklin Irrigation District we have about 30,000 acres and we spend $36,000 a month in attorney fees.”
Larson comments, “Growing up we were under a different set of rules. I too always planned to go into farming. But now I fear they are not going to stop until we are all out of business.”
Until the wells are capped and the farmers are no longer able to transfer their decreed water rights, there will be farmers and ranchers like Dennis and Justin Layton and Jay Larson farming and doing what is part of them. Justin and Jay are the younger farmers with young children wanting to see their farms and their farming traditions passed on to the next generation, like so many other young farmers in the valley.
For a valley where battles are being fought in a courtroom, it’s a little ironic that a building in the Gila Valley bears the name of former Supreme Court Justice Sandra Day O’Conner, a member of a pioneering family from the Gila Valley and most likely a prior decree holder.
Editor’s Note: Watch for continuing articles on Arizona’s water issues throughout the state, a critical part of Arizona agriculture.
