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|Arizona Supreme Court Interlocutory Appeals|
In re Proposed Gila River Indian Community Water Rights Settlement, Interlocutory Appeals No. WC-07-0001-IR and WC-07-0003-IR (Contested Case No. W1-207), Gila River Adjudication: These appeals involve the petitions for interlocutory review filed by the Apache Tribes (San Carlos Apache Tribe, Yavapai-Apache Nation, and Tonto Apache Tribe), the Lower Gila Water Users, and ASARCO LLC which seek review of the Superior Court's approval of the settlement agreement. The Court allowed the United States to file a consolidated answering brief in both appeals. The Court will announce the date and time of oral argument after the completion of the briefing.
|Meeting of the Court and Arizona Department of Water Resources|
At the request of the Arizona Department of Water Resources, on April 16, 2009, the Court and the Special Master met with Director Herb Guenther, Deputy Director Karen Smith, and attorneys Janet L. Ronald and Scott M. Deeny. Mr. Richard T. Burtell, Manager of the Adjudications and Planning Support Section, and Mr. Tom Carr, Assistant Director and Manager of the Statewide Planning Division attended. The Department's fiscal resources for the coming year and the budget outlook for future years were reviewed. Although the Department's budget for next year is not final, the Department is facing a severe budget situation. Mr. Guenther and Ms. Smith are working diligently to obtain the best possible budget. The tasks currently assigned by the Court were reviewed as well as future projects. The Court is expected to issue further directives based on the comments previously submitted by parties and the discussions held at this meeting.
New Court approved mailing lists dated January 23, 2009, are posted. The lists contain all changes reported to the office of the Special Master as of January 23, 2009. All Court approved mailing lists are promptly updated as changes occur.
Claimants, attorneys, and others often inquire regarding a variety of administrative matters handled by the Arizona Department of Water Resources and the Clerks of the Superior Court. In order to provide quick and proper assistance, the Special Master has compiled a list of contacts. Call the office of the Special Master (602-372-4115) to obtain a copy of the list. Legal advice cannot be given, but many inquiries can be answered.
Preliminary Hydrographic Survey Report for the Hopi Indian Reservation: The Arizona Department of Water Resources filed a Preliminary Hydrographic Survey Report ("Preliminary HSR") for the Hopi Reservation. The report involves the water rights claimed by the Hopi Tribe and the United States on the Tribe's behalf for use on the Hopi Reservation. The report is available for review at several public locations and on ADWR's Internet site. A copy can be purchased in paper or electronic DVD form. On March 9, 2009, the Court granted the joint request of the United States and the Hopi Tribe to extend the deadline for filing comments to the Preliminary HSR to June 30, 2009. A final HSR is anticipated to be filed in 2010.
The Arizona Department of Water Resources prepared a Preliminary Catalog of Non-Exempt Registered Wells to fulfill a requirement of the Zuni Indian Tribe Water Rights Settlement Agreement approved by the Court on November 27, 2006. Copies of the Preliminary Catalog can be reviewed at several public locations and on ADWR's Internet site. After considering comments, the Department will submit a final report to the Court by December 19, 2009.
Hopi Tribe Claimed Rights to Off-Reservation Surface Water: The Court issued a ruling determining that the Hopi Tribe is precluded from asserting water right claims in this adjudication to the extent such claims seek the right to water sources located within the Little Colorado River Basin that neither abut nor traverse Hopi lands. The Hopi Tribe has requested reconsideration of the order.
In re Hopi Tribe Priority: The Special Master commenced a contested case to resolve the question referred by the Court of "whether the claims to water rights asserted by, or on behalf of the Hopi Tribe in this adjudication have a priority of 'time immemorial' or are otherwise senior to the claims of all other claimants." As the case has proceeded, upon requests from various parties, the Special Master has extended the dates for filing disclosure statements, exchanging expert reports, commencing discovery, and has clarified filing of motions and briefs, denied a request to allow disclosures only in digital form, and allowed filing of rebuttal expert reports.
Subflow Zone Map of the San Pedro River Watershed: The Arizona Department of Water Resources notified parties that it expects to file the subflow technical report and map on or before June 30, 2009, rather than March 31, 2009, as previously announced. The Department is preparing the report pursuant to the Court's September 28, 2005, order, which describes the scope of the subflow technical report.
In re Aravaipa Canyon Wilderness Area: The Special Master extended the times for the United States to file a report and for other claimants to submit comments. The United States and the Salt River Project ("SRP") support commencing a contested case to determine the reserved water rights of the United States to the wilderness area, while Freeport-McMoRan Corporation does not. SRP suggested that the contested case include the Redfield Canyon Wilderness Area. The United States suggested seven legal issues for initial briefing and determination, a suggestion SRP supports. The legal issues are similar to those considered in other contested cases involving federal non-Indian reserved water rights claims. The Special Master's decision is pending.
In re San Pedro Riparian National Conservation Area: Special Master issued an order determining the six initial issues designated for briefing, requesting a report from the Arizona Department of Water Resources, and setting a telephonic conference to plan future proceedings. The Special Master found that the Congress expressly intended to reserve unappropriated water to accomplish the purposes of the conservation area.
The Special Master held the telephonic conference on April 23, 2009, at which the need for additional briefing and potential legal issues were discussed. After considering the comments, the Special Master will issue an order.
In re PWR 107 Claims, Gila River Adjudication: The Special Master requested a status report from the San Carlos Apache Tribe concerning its Reservation's southwest boundary issue raised in this contested case. The Tribe advised that discussions to resolve the issue have not been held since 2007, but efforts to commence talks with the new Administration will be made. The Tribe reported that the boundary issue was unsuccessfully discussed during the negotiations that led to the Arizona Water Settlements Act of 2004. The resolution of the boundary issue has deferred the adjudication of federal reserved water claims of the United States to sixteen springs.
In re Powers Garden Administrative Site, Gila River Adjudication: On December 31, 2008, the United States filed a report describing the efforts made by the parties to resolve their objections and the prospects for a complete settlement. The United States "believes settlement of this case is possible," having spoken with the Gila River Indian Community, San Carlos Apache Tribe, Tonto Apache Tribe, Yavapai-Apache Nation, and the Salt River Project. Following a supplemental report, the Special Master directed the United States to file by April 29, 2009, the stipulated agreements representing a final resolution of this case. If a final agreement has not been reached by then, the United States shall file a report outlining the status of negotiations and the prospects for a complete settlement.
In re Applications of Salt River Project for Injunctive Relief: The applications involve several parties in the Verde River Watershed. The Court set a schedule leading to an evidentiary hearing concerning Respondents Kovacovich Investment, L. P., Wiertzema Family Trust, and NBJ Ranch L. P. On April 15, 2009, the Court heard oral argument on motions for summary judgment filed by the respondents. The Court denied the motions. Because the parties need more time to present evidence, the Court postponed until early October the evidentiary hearing set in late April and added three days.
On April 24, 2009, the Court held a telephonic scheduling conference in the matters involving Respondents Henry, Kasper, Largent, Ray, and Stryker. The Court previously requested joint comprehensive pretrial memoranda from the parties. The Salt River Project and Respondents Kasper and Stryker filed a joint pretrial memorandum and proposed scheduling order. The other parties did not attend the conference. A telephonic conference has been set on July 16, 2009. These matters have pended in order to allow the parties to discuss mutual resolutions.
The Court set oral argument on December 4, 2009, for the motions for summary judgment filed by the Salt River Project in the matters involving Respondents Robinson and Chester-Campbell, L.L.C. These matters have pended in order to allow the parties to discuss a mutual resolution.
Lin Fehlmann: Lin retired after over 21 years of service with the Arizona State Bureau of Land Management. Lin worked on the adjudication statements of claimant and on numerous and diverse water rights filings. We wish Lin all the best in her new endeavors.
Lee Storey: Lee is the Producer and Director of the documentary film Smile 'Til It Hurts which explores the singing phenomenon Up With People. The documentary has been an official selection of three leading film festivals. Congratulations!
Michael B. Whiting: On January 2, 2009, Michael, who was associated with Brown & Brown Law Offices, P.C., was sworn-in as the new Apache County Attorney having been elected last November. We wish Michael all the best in his new position.
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