Arizona General Stream Adjudication Bulletin
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In re State Trust Lands, No. WC-11-0001-IR
On January 5, 2011, the Arizona Attorney General filed with the Arizona Supreme Court a petition for interlocutory review of the Court's ruling in the contested case In re State Trusts Lands. The appeal is docketed as Supreme Court Case No. WC-11-0001-IR. The Superior Court approved the Special Master's report on the issues concerning the existence of claimed reserved water rights on State of Arizona school trust lands. The Court held that the "trust lands at issue here were not withdrawn from the public domain and reserved for a federal purpose and, therefore, as a matter of law, cannot be deemed to possess federal implied reserved water rights."
The Attorney General's petition states that "the issue of a federal reserved water right for state trust lands is an issue of first impression." It is argued that Congress accomplished a withdrawal and reservation sufficient to establish a federal reserved water right when the school lands were reserved for the new State, and that Arizona's Enabling Act requires the implication that the United States intended to reserve unappropriated waters to accomplish the federal purpose of the reservation.
ASARCO LLC, Catalyst Paper (Snowflake) Inc., San Carlos Apache Tribe, Tonto Apache Tribe, Navajo Nation, and a joint group of twenty claimants consisting of cities, mines, an Indian community, and water providers filed responses. The responses present several issues for appellate consideration, but agree that the Supreme Court should grant review and resolve an important question in the adjudications.
On January 7, 2011, Governor Janice K. Brewer announced that Sandra Fabritz-Whitney will serve as Acting Director of the Arizona Department of Water Resources (ADWR). Former Director Herb Guenther remains on staff serving as the Special Advisor to the Acting Director.
Ms. Fabritz-Whitney was the Assistant Director of ADWR's Water Management Division since June 2005 where she oversaw the implementation of Arizona's Groundwater Code. Ms. Fabritz-Whitney served as Technical Administrator at the Arizona Water Banking Authority as well as Phoenix Active Management Area Assistant Area Director and Lead Municipal Planner. She began working at ADWR as an intern prior to graduation in 1993 from Arizona State University with a Bachelor's degree in Environmental Resources in Agriculture.
Mr. Guenther became Director in February 2003. The Special Master sent a letter of appreciation to Mr. Guenther and former Deputy Director Karen L. Smith for their consistent support of the Gila River and Little Colorado River adjudications.
At the request of a group of parties, the Court directed the Gila River Adjudication Steering Committee and the Little Colorado River Adjudication Settlement Committee to meet before June 10, 2011, to consider the adoption of a special procedural order for review and approval of non-Indian water rights settlements. The proposed procedural order is similar to the orders used to approve Indian water rights settlements. At the hearing held on March 15, 2011, the Court expressed a desire for a uniform order applicable to both adjudications. The Court allowed the submission of responses to the requests until May 20, 2011. The Court invited recommendations concerning the process for adoption of a special procedural order and the future compositions of both committees. The Gila Steering Committee will meet on June 1, 2011, at the Arizona Department of Water Resources.
In re Hopi Tribe Priority: On April 19, 2011, the Special Master held a telephonic conference to review the status of the pending settlement agreement and the Final Hopi Indian Reservation Hydrographic Survey Report. The settling parties reported that work continues on drafting a settlement agreement that will have a more practical funding cost than prior draft agreements. It is anticipated that draft legislation will be submitted to congressional leaders by June 1, 2011. The Arizona Department of Water Resources described its current projects, fiscal situation, and work done on the Final Hopi Indian Reservation HSR. The Special Master encouraged the department to continue working on the HSR as much as staff resources allow.
The Special Master extended the stay of this case until September 7, 2011, when a telephonic status conference will be held. The Navajo Nation and Hopi Tribe were requested to file by June 30, 2011, a status report on the congressional legislation.
Subflow Zone Map of the San Pedro River Watershed: The Court and the Special Master continue considering the objections filed to the Subflow Zone Delineation Report for the San Pedro River Watershed prepared by the Arizona Department of Water Resources (ADWR) pursuant to the Court's September 28, 2005, order. On February 1, 2011, after considering the comments of several parties, the Court designated the March 15, 2011, hearing as a pretrial conference to consider the procedures to be used at a subsequent evidentiary hearing and requested a joint pretrial statement.
At the pretrial conference, the Court heard the positions of several claimants who presented substantive legal and technical issues. Following the hearing, the Court determined that a subsequent hearing to take testimony addressing further direction to ADWR on areas of concerns identified by the parties would be set prior to an evidentiary hearing. The Court requested a revised pretrial statement. On April 22, 2011, the litigants who will participate in this proceeding filed a revised joint pretrial statement. A pretrial statement was previously submitted on March 7, 2011.
On January 31, 2011, ADWR submitted its report responding to the objections and comments being heard by the Court. The report does not address the objections being heard by the Special Master. The report groups the objections into six categories and contains numerous tables, figures, and appendices. Claimants may purchase a copy of ADWR's two reports prepared for this case for $100.00 each, or an electronic copy on DVD for $10.00 each. Call 1-866-246-1414. Both reports are available for download from the department's web site at http://www.azwater.gov/dwr.
The Special Master is addressing seventeen objections filed by individual claimants. He held a conference on December 14, 2010, in Sierra Vista. On February 16, 2011, the Special Master informed the parties that the determination of nine objections would be deferred until a later time, and he would recommend the dismissal of the remaining eight objections.
In re San Pedro Riparian National Conservation Area: The Arizona Department of Water Resources filed a supplement to its Land Ownership Report for 26 parcels of land the United States acquired after November 18, 1988, the day the conservation area was established. The supplement provides a listing of the number of acres included in each deed and updates land ownership. The supplement shows the dates that the deeds were signed, the United States accepted title, and the United States acquired or reserved rights for each acquisition. Concerning an important reason for the supplement, the United States informed the department that the deed signing date is the date of formal incorporation of the land into the conservation area. This point pertains to the claimed date of priority of a reserved water right.
The steering committee for this case reported it had met twice in October 2010, but could not reach consensus on the future direction of the case because the United States was planning to amend its water rights claims for the conservation area. On April 15, 2011, the United States filed its third set of amended claims. The steering committee plans to meet to attempt to reach a consensus on future issues for resolution.
In re Aravaipa Canyon Wilderness Area: This case is going through its initial round of briefing seven legal issues by motions for summary judgment and oral argument. The United States, Freeport-McMoRan Corporation, and Salt River Project filed motions for summary judgment addressing the seven issues. On April 4, 2011, these parties filed responses to the motions for summary relief. In an unrelated matter, the Special Master added Arizona Public Service and the Roosevelt Water Conservation District to the Court approved mailing list of this case. The addition to the mailing list does not grant these parties the status of an intervenor. A similar order was entered in three other contested cases.
In re Powers Garden Administrative Site: The Special Master requested a report from the settling parties concerning the settlement negotiations and any issues whose resolution would expedite the conclusion of this case.
In re Applications of Salt River Project for Injunctive Relief: These matters involve applications for injunctive relief in the Verde River Watershed. Most of the applications have been resolved, but several remain while the litigants discuss a mutual settlement.
In the matter involving respondents Henry, Kasper, Ray, and Stryker, the Salt River Project (SRP) filed a motion for summary judgment. On January 25, 2011, at the request of the parties, the Court extended the date for these respondents to answer SRP's motion to July 15, 2011.
In the matter of the NBJ Ranch, L.P., with the permission of the Court, the parties continue to discuss executing a settlement agreement. The Court held an evidentiary hearing and made a ruling granting SRP injunctive relief and requiring SRP to post a $75,000.00 cash bond, but a judgment has not been entered. Following the ruling, the parties requested the Court's permission to attempt to negotiate an agreement.
In re PWR 107 Claims: The Special Master requested a status report from the San Carlos Apache Tribe concerning the matter of the reservation's southwest boundary raised in this case. The Tribe has held discussions with the United States at high executive levels, but a resolution has not been achieved since a partial adjudication decree was entered in April 2008. The Tribe claims that sixteen springs remaining to be adjudicated are located inside the reservation's southwest boundary, a position opposed by the Bureau of Land Management. Several land surveys have been completed in the last 100 years, but a final resolution remains elusive. The adjudication court does not have jurisdiction to resolve Indian tribal boundary disputes.
The Special Master receives inquiries from claimants, attorneys, paralegals, and citizens concerning a variety of administrative matters. In order to get you in touch with the proper person, we provide the following list of contacts:
- Questions about summonses, statement of claimant forms, and assignments: Arizona Department of Water Resources, Ms. Ana Marquez at 602-771-8405.
- Copies of statements of claimant and documents available at the Arizona Department of Water Resources: Ms. Ana Marquez at 602-771-8405.
- Gila River Adjudication monthly docket sheets: Clerk of the Maricopa County Superior Court, Mr. Ken Shipley at 602-506-3369.
- Little Colorado River Adjudication monthly docket sheets: Clerk of the Apache County Superior Court, Mrs. Elisa Y. Craig at 1-928-337-7671. Mr. Shipley and Mrs. Craig can answer questions concerning the adjudication records of the Clerks of the Superior Court.
- Purchasing a subscription to the monthly docket service: Arizona Department of Water Resources at 602-771-8472.
- Preparation and updating of the Gila River Adjudication and Little Colorado River Adjudication mailing lists: Arizona Department of Water Resources at 602-771-8472.
- Preparation and updating of all other Court approved mailing lists: Office of the Special Master, Ms. Barbara K. Brown at 602-372-4115.
- Contacting Judge Eddward P. Ballinger, Jr.'s office: Ms. Linda Gray at 602-506-8551.
- Contacting the Clerk of the Arizona Supreme Court: Ms. Sara Jones at 602-452-3396.
- Contacting the Special Master's office: Ms. Barbara K. Brown at 602-372-4115.
For a calendar of proceedings and orders, visit the General Stream Adjudications website at http://www.superiorcourt.maricopa.gov/SuperiorCourt/GeneralStreamAdjudication/.
For reports, claims, objections, disclosure documents, and information, visit the website of the Arizona Department of Water Resources (Adjudications) at http://www.azwater.gov/AzDWR/SurfaceWater/Adjudications/default.htm.
Richard T. Burtell, Manager of the Adjudications and Planning Support Section of the Arizona Department of Water Resources: Rich announced his resignation from the department. The Court and Special Master thank Rich for his hard work, commitment, and focus that he brought to the adjudications. Rich and his staff worked on subflow hydrology, prepared technical reports for several contested cases, and conducted hydrographic survey report investigations. We wish him the best.
Link here to the calendar of proceedings.
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