Arizona General Stream Adjudication Bulletin
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In re the Preclusive Effect of the Globe Equity No. 59 Decree on Specified Parties, Gila River Adjudication: On October 12, 2005, the Supreme Court heard oral argument in this interlocutory appeal. A decision is forthcoming.
In re Subflow Technical Report, San Pedro River Watershed: Judge Ballinger on September 28, 2005, issued his order regarding the Special Master's report addressing the criteria for delineating the subflow zone, establishing a cone of depression test, and setting guidelines for de minimis water rights. The 43-page order, Special Master Schade's 104-page report, and the Arizona Department of Water Resources' technical report are available online.
Judge Ballinger's ruling establishes the technical criteria and methods that the Department must follow when investigating and reporting uses of subflow. The Arizona Supreme Court has issued two decisions, arising from the Gila River Adjudication, concerning subflow. Judge Ballinger's ruling implements the Supreme Court's tests announced in those decisions.
On December 27, 2005, two groups of parties filed with the Arizona Supreme Court petitions for interlocutory review of portions of the Superior Court's September 28, 2005, order. The Supreme Court's Special Procedural Order Providing for Interlocutory Appeals and Certifications applies to these petitions.
Conference Set on January 19, 2006, for De Minimis Case to be Organized: Judge Ballinger's ruling on the subflow issues included a directive to the Special Master "to seek input from the Department and claimants and take such other necessary steps to fashion standards for identifying non-domestic de minimis water uses." Accordingly, the Special Master has scheduled a conference at 10:00 a.m. on January 19, 2006, in Courtroom 504, Central Court Building, 201 W. Jefferson, Phoenix. Pursuant to the Special Master's request, comments have been filed regarding the following: (1) scope of the Court's directive, (2) scope of the final determinations, (3) potential legal issues and technical problems, (4) the role of the Arizona Department of Water Resources, (5) timeline for filing disclosure statements, (6) timeline for completing discovery, (7) timelines for motions and briefing schedules, (8) scope of evidentiary hearings, and (9) use of expert evidence.
Salt River Project's Applications for Injunctive Relief Re Respondents Kasper, Kober, Largent, Ray, and Stryker: The parties in these matters informed the Court that a settlement had been reached. The papers formalizing the settlement will be filed when fully executed, and a status conference has been set on April 7, 2006, before Judge Ballinger.
Salt River Project's Applications for Injunctive Relief Re Respondent Verde River Ranch, LLC: The parties in these matters informed the Court that a settlement had been reached. The papers formalizing the settlement will be filed when fully executed.
In re PWR 107 Claims: Following a status conference held on October 13, 2005, the Special Master directed the United States to file by January 13, 2006, a memorandum on its position as to how to proceed with the adjudication of its claims that are located in areas either adjoining or within the San Carlos Indian Reservation, allowed filing of responses and a reply, and directed the United States to file a report by May 5, 2006, concerning the locations of nine springs. A status conference may be set in the spring of 2006.
In re San Pedro Riparian National Conservation Area (a contested case not yet initiated): The Special Master requested the United States to file a report by December 30, 2005, describing the work completed or in progress concerning its statements of claimant and indicating a firm date for the filing of new or amended claims. This case addresses the state law and federal reserved water right claims of the United States to the riparian national conservation area located in Southern Arizona.
Status Conference: Judge Eddward P. Ballinger, Jr. held a status conference at the Apache County Courthouse in St. Johns on October 18, 2005. Prior to the conference, the Arizona Department of Water Resources (ADWR) filed a report concerning the status of the hydrographic survey report (HSR) for the Hopi Reservation. The report described field work and research undertaken to date and outlined additional tasks to be accomplished. The report concluded by stating the Department will be in a better position to provide an estimate of the time required to produce the Hopi Reservation HSR after the need for additional fieldwork is determined and how that additional fieldwork is impacted by budgetary constraints. ADWR expects to make that assessment by May 2006.
In response to Judge Ballinger's desire to learn whether any claims can be expeditiously adjudicated, the Navajo Nation submitted on October 13, 2005, a list of issues that can be addressed by motions for summary judgment. During the conference, several parties agreed that some issues can be addressed in the absence of a Hopi Reservation HSR. As a result of the conference, several claimants have submitted their own list of issues. The Court has granted the Hopi Tribe until March 6, 2006, to comment on these lists of issues.
Judge Ballinger inquired whether the Court should take up the findings of fact and conclusions of law set forth in Special Master Thorson's Memorandum Decision of April 20, 1994, concerning summary adjudication of de minimis water uses. Several parties commented that the claims and water uses that were the basis for that 1994 report have changed substantially, and a new HSR would be needed to evaluate the current information. Judge Ballinger has deferred action on the report until such other time as the Court deems appropriate.
In re Phelps Dodge Corporation (Show Low Lake): Judge Ballinger has dismissed this contested case. The Arizona Department of Water Resources distributed a press release on October 7, 2005, and the Special Master issued a final report on October 21, 2005. This contested case, begun in 1992, was concluded when Phelps Dodge voluntarily abandoned its water right claims to Show Low Lake and transferred the dam and additional lands to the City of Show Low.
ADWR's Electronic Data Base Eases Discovery: For two contested cases, In re Fort Huachuca (W1-11-605) and In re State Trust Lands (W1-104 and 6417-100), the Arizona Department of Water Resources has created an electronic data base for the purpose of assembling discovery documents. The data bases will enable all claimants and legal counsel to see what documents have been disclosed. ADWR has posted on its web site the disclosure input form that describes each document disclosed. The procedure calls for parties to submit a searchable index of documents, as well as provide electronic copies of the documents themselves. It is expected that the electronic data base procedures will be used for discovery in future contested cases that may benefit from them.
Arizona Supreme Court Amends Rule of Civil Procedure 53: The Arizona Supreme Court has amended Arizona Rule of Civil Procedure 53 which deals with court-appointed masters. The amended rule becomes effective on January 1, 2006. The Special Master's comments concerning the new rule were considered. The office of the Special Master has mailed a copy of the Supreme Court's order to all persons listed on the Court-approved mailing lists for both adjudications.
Special Master Writes Article: The Special Master has written an article published in the Arizona Capitol Times. The article describes the use of contested cases and the various ongoing proceedings in both adjudications.
Link here to the calendar of proceedings on the Special Master's web site.
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