                                                                           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                           NOT FOR PUBLICATION                              MAR 19 2012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.


                                           2
      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,


                                           4
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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