Arizona General Stream Adjudication Bulletin
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In re Proposed Gila River Indian Community Water Rights Settlement and 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 sought review of the Superior Court's approval of the settlement agreement. On February 19, 2010, the Supreme Court affirmed the Superior Court's order approving the Gila River Indian Community water rights settlement. The Court held that the Superior Court complied with the Supreme Court's Special Order for approving Indian water rights settlements.
The opinions of the Arizona Supreme Court that have decided interlocutory appeals in the Gila River Adjudication are popularly called the Gila opinions. Following are the citations for the eight Gila opinions.
Gila I - In the Matter of the Rights to the Use of the Gila River, 171 Ariz. 230, 830 P.2d 442 (1992) (filing and service of pleadings procedures of Pre-Trial Order No. 1).
Gila II - In re the General Adjudication of All Rights to Use Water in the Gila River System and Source, 175 Ariz. 382, 857 P.2d 1236 (1993) (test for subflow; see Contested Case No. W1-103, In re Subflow Technical Report, San Pedro River Watershed).
Gila III - In re the General Adjudication of All Rights to Use Water in the Gila River System and Source, 195 Ariz. 411, 989 P.2d 739 (1999), cert. denied sub nom. Phelps Dodge Corp. v. U.S. and Salt River Valley Water Users' Assn. v. U.S., 530 U.S. 1250 (2000) (federal reserved rights, non-appropriable groundwater, and enforcement).
Gila IV - In re the General Adjudication of All Rights to Use Water in the Gila River System and Source, 198 Ariz. 330, 9 P.3d 1069 (2000), cert. denied sub nom. Phelps Dodge Corp. v. U.S., 533 U.S. 941 (2001) (test for subflow; see Contested Case No. W1-103).
Gila V - In re the General Adjudication of All Rights to Use Water in the Gila River System and Source, 201 Ariz. 307, 35 P.3d 68 (2001) (amount of water reserved for federal reservations and Indian reservations).
Gila VI - In re the General Adjudication of All Rights to Use Water in the Gila River System and Source, 212 Ariz. 64, 127 P.3d 882 (2006), rec'n denied, 212 Ariz. 470, 134 P.3d 375 (2006), cert. denied sub nom. San Carlos Apache Tribe v. Arizona and Phelps Dodge Corp. v. San Carlos Apache Tribe, 549 U.S ___, 127 S.Ct. 928 (2007) (Contested Case No. W1-206, In re the Preclusive Effect of the Globe Equity No. 59 Decree on Specified Parties).
Gila VII - In re the General Adjudication of All Rights to Use Water in the Gila River System and Source, 217 Ariz. 276, 173 P.3d 440 (2007) (Contested Case No. W1-208, In re Proposed Tohono O'odham Nation Water Rights Settlement).
Gila VIII - In re the General Adjudication of All Rights to Use Water in the Gila River System and Source, ___ Ariz. ___, 224 P.3d 178 (2010) (Contested Case No. W1-207, In re Proposed Gila River Indian Community Water Rights Settlement).
Last year, the Court began a process to review the membership of the Steering Committee and consider modifications to Pre-Trial Order No. 1 (May 30, 1986) concerning the committee. After reviewing comments from claimants and the Arizona Department of Water Resources, the Court made new appointments and modified Pre-Trial Order No. 1 as it concerns the committee. The Court thanked outgoing members for their assistance. The Steering Committee, in existence since 1986, now has twelve members. They are charged with making recommendations to the Court concerning procedures for simplifying the adjudication.
The Special Master wrote a letter to the Editor of the Arizona Attorney magazine in response to an interview of University of Arizona College of Law Professor Robert Glennon. Professor Glennon discussed his recent book Unquenchable: America's Water Crisis and What To Do About It and touched upon the Gila River Adjudication. The letter provided information on some of the accomplishments of the Gila River Adjudication. The Special Master's letter appeared in the April 2010 issue of the Arizona Attorney.
In re State Trust Lands, Gila River and Little Colorado River Adjudications: The Special Master submitted his report to the Court. The Special Master concluded that federal legislation, court decisions, historical documents, and all evidence submitted by the parties, considered within the law relating to federal reserved water rights, do not show that implied reserved water rights exist for the State Trust Lands. On September 13, 2010, the Court will hear the objections to the report. The Court may adopt or affirm, modify, wholly or partly reject or reverse, or resubmit to the master with instructions.
In re Hopi Tribe Priority: The Special Master granted the request of the Hopi Tribe limited to additional time for discovery and briefing issues of Spanish and Mexican law. This contested case addresses the question the Court referred to the Special Master 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." The parties have filed disclosure statements, exchanged expert reports, and conducted discovery. The Special Master will hold a telephonic conference on May 5, 2010.
In re Sands Group of Cases: On January 26, 2010, the Special Master met with the staff of the Arizona Department of Water Resources to discuss completion of the work the Court directed. The Department will begin reviewing the current information and set a schedule. The work involves the summary adjudication process the Court approved for all existing de minimis uses that meet the Sands criteria for small domestic, stockpond, and stockwatering uses. Former Special Master John E. Thorson recommended a summary adjudication process.
In re San Pedro Riparian National Conservation Area: On February 18, 2010, the Special Master heard oral argument on briefs addressing two issues. On March 19, 2010, the Special Master issued a ruling concerning the state law certificated instream flow water right held by the United States for the conservation area. The Special Master found that the United States' certificated water right must be considered a water right available to serve the federal purposes of the riparian area, and second, the beneficial uses of this water right are distinct and separate uses that partially, but not fully, fulfill the federal purposes of the riparian area to the extent water is required. At the request of parties, the Special Master allowed 60 days for comments concerning the next phase of this contested case. Several parties have filed comments and recommendations.
In re Fort Huachuca: On January 28, 2010, the Court heard oral argument on the objections to the Special Master's report. Based on arguments made, the Court allowed supplemental briefing on the issue of the extent of the federal reserved water rights of the United States for Fort Huachuca. Oral argument on supplemental briefs is set on July 15, 2010.
In re PWR 107 Claims: The Special Master requested the San Carlos Apache Tribe to report on the progress of discussions with the United States held since March 2009, regarding resolution of the southwest boundary of the reservation. The boundary issue has delayed the adjudication of sixteen springs. The Tribe filed a report advising that no substantive discussions have been conducted between the Tribe and the United States since March 2009. The Tribe considers the matter to be within the responsibilities of the Tribe's General Counsel and not its adjudication counsel. Severe economic conditions in 2008, 2009, and 2010 have limited work on the boundary question.
In re Aravaipa Canyon Wilderness Area: At the request of the United States, the Special Master extended by 45 days all of the scheduled dates in the current briefing of initial issues. The parties continue to file disclosure statements and conduct discovery. This contested case addresses the claimed reserved water rights of the United States for the wilderness area.
In re Applications of Salt River Project for Injunctive Relief: Five separate matters are proceeding in the Verde River Watershed. In the matter involving NBJ Ranch L.P., the Court held an evidentiary hearing on October 5-7, 2009. On March 25, 2010, the Court issued its ruling granting the Salt River Project injunctive relief and requiring SRP to post a $75,000.00 cash bond. A review hearing will be held on May 4, 2012, to determine if the injunctive relief should continue or the bond amount be modified. SRP has filed a proposed form of judgment.
Wiertzema Family Trust: After the Court dismissed SRP's application for injunctive relief against the Wiertzema Family Trust on the ground that the Project was seeking expanded relief beyond the scope of the hearing the Court agreed to undertake, the Trust requested an award of attorney's fees, expert witness, and consultant fees. SRP opposed the motion. The Court requested memoranda from counsel on four questions and set a hearing on June 21, 2010.
Kovacovich Investment L.P.: On January 19, 2010, the Court granted the parties' stipulation to dismiss without prejudice SRP's application for injunctive relief against Kovacovich Investment L.P. concluding this matter.
Henry, Kasper, Largent, Ray, and Stryker: On February 2, 2010, the Court granted the parties' stipulation to dismiss with prejudice SRP's application for injunctive relief against Respondents Largent. On March 4, 2010, the Court vacated the pretrial conference and evidentiary hearing set on March 30-31, 2010, and granted Respondents Henry, Kasper, Ray, and Stryker until May 8, 2010, to file their response to SRP's motion for summary judgment.
Robinson and Chester-Campbell, L.L.C.: SRP and these parties are discussing a mutual resolution.
Mailing Addresses: Keeping your mailing address updated with the Arizona Department of Water Resources is very important. Please read the Special Master's letter posted on the web site of the Arizona Association of Realtors.
Online Archive of Indian Water Rights Settlements: The University of Idaho College of Law is creating an online archive of the 25 currently adopted Indian water rights settlements. Professor Barbara Cosens directs the project. Representatives of the project may contact counsel and other interested persons to obtain information or copies of documents. The Special Master encourages all to provide assistance to the extent they can because this project promises to be very helpful in future years.
Orr Ditch Decree Litigation: On occasion, we distribute court decisions of interest to attorneys and parties involved in general stream adjudications. On April 7, 2010, the Ninth Circuit Court of Appeals issued an opinion in United States v. Orr Water Ditch Co. The opinion addresses the extent of the Pyramid Lake Paiute Tribe's decreed surface water rights to protection from groundwater allocations approved by the Nevada State Engineer. The Court of Appeals held that "the Orr Ditch Decree forbids groundwater allocations that adversely affect the Tribe's decreed" surface water rights, and "the federal district court has jurisdiction over an appeal from groundwater allocations" approved by the Nevada State Engineer "that are alleged to have such an adverse effect."
Link here to the calendar of proceedings.
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