A recent ruling from the U.S. Ninth Circuit Court of Appeals underscores the importance of beneficially using water, as currently recognized in California, to maintain state water rights. On June 13, a three-judge panel rejected an appeal by a mining corporation to transfer water rights it held to the Gila River in Arizona. The court found that the corporation failed to present sufficient evidence that severing and transferring its water rights to the Gila River would not injure the interests of other Gila River water rights holders, as adjudicated by the 1935 Globe Equity Decree. The court also held that pre-1919 water rights under Arizona law were subject to statutory forfeiture after five years of non-use, and that the corporation had abandoned a portion of its water rights due to an 11-year period of non-use.

 An operative provision of the 1935 Decree allows a water rights holder to transfer a water right to lands not encompassed by the Decree. Among other court-ordered requirements for modifying a decreed water right, a water user must show no injury to other parties’ rights.

Here, the Ninth Circuit determined that the corporation failed to meet that burden. The court upheld the lower court’s finding that the proposed transferor of a decreed right needed to address water quantity and quality concerns in light of certain hydrologic features of the Gila River and the cumulative impacts of the water transfer.

In addition, the court overturned the lower court’s finding that pre-1919 water rights in Arizona were not subject to statutory forfeiture. Instead, the court held that the Arizona Supreme Court had already recognized that pre-1919 water rights were subject to statutory forfeiture and thus the lower court’s finding to the contrary based on the law as it existed in 1919 was invalid.

In this important decision, the Ninth Circuit has confirmed that the actual beneficial use of water is a primary driver in Western water law, regardless of when a water right was established. Such a holding comports with California Constitutional law that all water and water rights must be put to reasonable and beneficial use to avoid waste. These parallels among Western water law and policy will continue to take shape as major water disputes unfold.

The case is U.S., et al. v. Gila Valley Irrigation District, et al.

A recent ruling from the U.S. Ninth Circuit Court of Appeals underscores the importance of beneficially using water, as currently recognized in California, to maintain state water rights. On June 13, a three-judge panel rejected an appeal by a mining corporation to transfer water rights it held to the Gila River in Arizona. The court found that the corporation failed to present sufficient evidence that severing and transferring its water rights to the Gila River would not injure the interests of other Gila River water rights holders, as adjudicated by the 1935 Globe Equity Decree. The court also held that pre-1919 water rights under Arizona law were subject to statutory forfeiture after five years of non-use, and that the corporation had abandoned a portion of its water rights due to an 11-year period of non-use.

 An operative provision of the 1935 Decree allows a water rights holder to transfer a water right to lands not encompassed by the Decree. Among other court-ordered requirements for modifying a decreed water right, a water user must show no injury to other parties’ rights.

Here, the Ninth Circuit determined that the corporation failed to meet that burden. The court upheld the lower court’s finding that the proposed transferor of a decreed right needed to address water quantity and quality concerns in light of certain hydrologic features of the Gila River and the cumulative impacts of the water transfer.

In addition, the court overturned the lower court’s finding that pre-1919 water rights in Arizona were not subject to statutory forfeiture. Instead, the court held that the Arizona Supreme Court had already recognized that pre-1919 water rights were subject to statutory forfeiture and thus the lower court’s finding to the contrary based on the law as it existed in 1919 was invalid.

In this important decision, the Ninth Circuit has confirmed that the actual beneficial use of water is a primary driver in Western water law, regardless of when a water right was established. Such a holding comports with California Constitutional law that all water and water rights must be put to reasonable and beneficial use to avoid waste. These parallels among Western water law and policy will continue to take shape as major water disputes unfold.

The case is U.S., et al. v. Gila Valley Irrigation District, et al.

- See more at: https://www.bbknowledge.com/water-2/ninth-circuit-requires-evidence-of-no-injury-recognizes-forfeiture-of-pre-1919-arizona-water-rights/#sthash.V7No3LXJ.dpuf