United States v. Gila Valley Irrigation District: The Application of Statutory Forfeiture to Pre-1919 Water Rights in Arizona, and its Potential Ramifications

Abstract

On June 13, 2017, the Ninth Circuit Court of Appeals issued an opinion in the federal court proceedings relating to the continuing enforcement of the 1935 Globe Equity Decree. That opinion held, among other things, that appropriative surface water rights that vested prior to enactment of the 1919 Arizona water code were subject to statutory forfeiture under Arizona law based upon a period of five or more years of nonuse, without the necessity of showing intent to surrender the right. The Ninth Circuit’s opinion is not binding precedent on the Arizona state courts. Its potential application to water rights within the jurisdiction of the Globe Equity court or to claims for pre-1919 water rights within the jurisdiction of the ongoing general stream adjudications in the state courts has far-reaching implications for surface water rights in Arizona. Until the Arizona Supreme Court addresses the issue, there is a tremendous amount of legal uncertainty for the vast quantity of claimants with pre-1919 surface water rights. The article begins with a brief introduction to the legal doctrine of prior appropriation as it evolved in the American West and continues with a history of the development of the doctrine in Arizona. Next, it traces the history of statutory forfeiture as it applies to surface water rights in Arizona as well as the statutory and legal context in which it arose and was later amended. The article also provides a close reading of both the trial court orders and their subsequent appeal that gave rise to the Arizona Supreme Court’s 1999 opinion in San Carlos Apache Tribe v. Superior Court and the Ninth Circuit’s 2017 opinion in United States v. Gila Valley Irrigation District. The article posits that, contrary to the Ninth Circuit’s opinion, the Arizona Supreme Court has yet to resolve whether statutory forfeiture applies to pre-1919 surface water rights. It also surveys how similar issues have been treated in other jurisdictions. Finally, it explores questions raised by the Ninth Circuit opinion and its application to surface water rights in Arizona’s stream adjudications if the Arizona Supreme Court adopts the Ninth Circuit’s holding.