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, Interlocutory Appeal WC-02-0003-IR (Cont. Case No. W1-206), Gila River Adjudication: On February 9, 2006, the Arizona Supreme Court affirmed and remanded the Superior Court's order. The Supreme Court held that the 1935 Globe Equity Decree (Decree) of the Federal District Court of Arizona "precludes the [San Carlos] Apache Tribe and the United States on the Tribe's behalf from asserting claims to water from the mainstem of the Gila River beyond those rights granted in the Decree, but that it does not preclude claims to the tributaries of the Gila River."
The Court declined to address the Tribe's argument that the Decree is not entitled to preclusive effect because of an absence of privity, held that the United States was vested with the authority to represent the Tribe in the Globe Equity litigation and to litigate the extent of the Tribe's water rights, and held that non-parties to the Decree could assert its preclusive effect but only as to the waters in the Gila River mainstem. The Court vacated its order granting review of another portion of the Tribe's petition.
The San Carlos Apache Tribe filed a Motion for Reconsideration. On May 3, 2006, the Supreme Court denied the motion. This is one of three related appeals filed by the United States, Gila River Indian Community, and the San Carlos Apache Tribe, and cross-petitions filed by Phelps Dodge Corporation and Salt River Project.
In re Subflow Technical Report, San Pedro River Watershed, Gila River Adjudication: Several parties have filed with the Arizona Supreme Court petitions and cross-petitions for interlocutory review of portions of the Superior Court's order concerning the criteria for delineating the subflow zone, establishing a cone of depression test, and setting guidelines for de minimis water rights.
Petitioners raised five main issues for review. The petitioners are Arizona Public Service Company, Phelps Dodge Corporation, and Roosevelt Water Conservation District, and the Cities of Chandler, Glendale, Mesa, and Scottsdale. On January 27, 2006, a cross-petition for review was filed by Pueblo Del Sol Water Company. All responses and replies have been filed, and the interlocutory appeal is pending the Supreme Court's consideration.
In re Proposed Zuni Indian Tribe Water Rights Settlement, Little Colorado River Adjudication: The Court has issued an order granting an application to commence a special proceeding to consider the proposed settlement of the claimed water rights of the Zuni Indian Tribe and the United States for the benefit of the Tribe. The settling parties have mailed approximately 3,500 notices of the proposed settlement to claimants in the Little Colorado River Adjudication.
Claimants seeking more information should check the Arizona Department of Water Resources (ADWR) website www.azwater.gov/dwr, go to Hot Topics then Arizona Water Settlements - Zuni Settlement. Questions not answered by the website can be called to the Department at 602-771-8472.
The Court's order directs ADWR to prepare a factual analysis and/or technical assessment by May 15, 2006, allows claimants to file objections to the report by June 29, 2006, and file responses by August 8, 2006. A public presentation regarding the proposed settlement will be held in St. Johns on June 1, 2006, at 7:00 p.m. The location is the Apache County Board of Supervisors' Room, Apache County Annex Building, 75 West Cleveland, St. Johns.
This special proceeding is subject to the Arizona Supreme Court's Administrative Order adopted for the approval of settlements of Indian water rights issued in 2000.
Status Conference: The Court has set a status conference on May 12, 2006, at 9:30 a.m. in St. Johns, Arizona. The Court has requested to hear the status of settlement negotiations and the progress of the Hopi Reservation Hydrographic Survey Report and will invite comments concerning the issues that can be addressed by summary judgment.
In re Fort Huachuca: The Special Master has granted the request of several parties, including the claimant United States, to move back four deadlines and has set a telephonic status conference. Discovery has been proceeding since January, and the parties have held settlement discussions.
In re State Trust Lands: Filing of disclosure statements and discovery have been proceeding according to the established schedules.
In re Non-Domestic De Minimis Water Uses, A Contested Case Not Yet Organized: The Special Master solicited comments and held a hearing concerning the organization of a contested case to consider non-domestic de minimis uses. After the hearing on January 19, 2006, the Special Master submitted a report to the Superior Court recommending (1) that the organization of a contested case be deferred until the Court approves the subflow zone map for the San Pedro River Watershed and (2) that the Court direct the Arizona Department of Water Resources (ADWR) to implement several actions to expedite this matter. Comments concerning the report were filed jointly by Arizona Public Service Company, Phelps Dodge Corporation, and Roosevelt Water Conservation District and by ADWR. The Gila River Indian Community filed a motion to adopt the Special Master's recommendations with minor modifications. Not yet set is when the Court will take up the report and comments.
In re PWR 107 Claims: On May 5, 2006, the United States is expected to file a report concerning the location of several springs relative to the southern boundary of the San Carlos Indian Reservation. The Special Master granted the request of the San Carlos Apache Tribe to extend the time to file a response to the United States' legal memorandum, and similarly the time for the United States to reply has been extended. The United States has requested the Special Master to proceed with the adjudication of its claimed federal reserved water rights notwithstanding the dispute with the Tribe over the reservation's boundary.
In re San Pedro Riparian National Conservation Area (a contested case not yet initiated): On January 31, 2006, the United States filed a second amended statement of claimant for the claimed federal reserved water right for the riparian national conservation area located in Southern Arizona.
Salt River Project's Applications for Injunctive Relief Re Respondents Henry M. Shill and Don H. Shill dba Shield Ranch, Inc.: On April 5, 2006, the Court heard oral argument on Salt River Project's motion for summary judgment that Respondents do not have a colorable claim to use surface water to irrigate two parcels of land. Respondents did not attend the argument but recently requested the Court to reschedule oral argument.
Salt River Project's Applications for Injunctive Relief Re Respondents Kasper, Kober, Largent, Ray, and Stryker: These matters have settled.
Salt River Project's Applications for Injunctive Relief Re Respondent Verde River Ranch, LLC: This matter has settled, and the parties have filed a stipulated motion to withdraw Salt River Project's application for injunctive relief.
David A. Brown: Earlier this year, Dave Brown underwent surgery necessitated by an aneurysm. We are informed that he is recuperating well. We wish Dave a successful and lasting recovery.
Graham M. Clark, Jr. and Courtney A. Fligeltaub: There have recently been staffing changes in the Natural Resources Section of the Office of the Arizona Attorney General which represents the proprietary interests of the state in the general stream adjudications. Graham Clark, who served as Chief Counsel of the Water Resources Unit from July 2000 through December 2005, has joined the firm of Renaud, Cook, Drury and Mesaros, P.A. where he handles commercial litigation and transactional work. During Mr. Clark's tenure the state focused its water rights efforts on seeking a determination of the potential existence of federal reserved water rights for state trust lands, resulting in the establishment of a contested case pending before the Special Master in both adjudications. Former Assistant Attorneys General Tom Shedden (now an Administrative Law Judge) and Courtney Fligeltaub (now an associate with Renaud, Cook, Drury and Mesaros, P.A.) contributed substantially to the research and briefing of the state's reserved rights claim. On May 1, 2006, Patrick Sigl will join the Attorney General's Office and assume responsibility for water resources matters. Thank you to Assistant Attorney General Mary Mangotich Grier who submitted this news.
Rodney B. Lewis: Mr. Lewis retired as General Counsel of the Gila River Indian Community in December, 2005, having served as tribal attorney for 33 years. Rod was actively involved in the Gila River Adjudication and was instrumental in the work leading to the Arizona Water Settlements Act. He is now associated with Akin, Gump, Strauss, Hauer and Feld in Washington, D.C.
Link here to the calendar of proceedings on the Special Master's web site.
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