United States v. Sunset Ditch Company

MEMORANDUM

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 Free-port 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 Free-port applications. Freeport contends there is no appellate jurisdiction to hear any part of its protective appeal. We agree.

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…