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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, attorneys Janet L. Ronald and Scott M. Deeny, Richard T. Burtell, Manager of the Adjudications and Planning Support Section, and Tom Carr, Assistant Director and Manager of the Statewide Planning Division. The Department's resources for the coming fiscal year and the budget outlook for future years were reviewed. At the time of the meeting, the Department was facing a severe budget shortfall. Mr. Guenther and Ms. Smith were working diligently to obtain the best possible budget and safeguard programs. Also reviewed were the Court's current assignments to the Department as well as future projects. The meeting lasted an hour and a half.
Following the meeting and having considered comments from several parties, the Court entered the same order in both adjudications approving the course of action proposed in the Department's reports filed on January 31, 2007, and October 15, 2008.
These actions involve publishing the subflow zone map and report for the San Pedro River Watershed (see article below), preparing an inventory of the de minimis water uses that were part of the Sands contested case (W1-11-19), and publishing proposed abstracts of water rights for existing de minimis uses that meet the Sands criteria but were not part of that case. The Department plans to identify and investigate new water uses, including those involving wells, throughout the entire San Pedro River Watershed, and develop watershed file reports for potential contested cases. Following the approval of the San Pedro subflow zone map, the Department plans to conduct cone of depression analyses for existing and new wells in the San Pedro River Watershed beginning in the Sierra Vista Subwatershed.
The Department plans to update existing watershed file reports in the San Pedro River Watershed as directed by the Court or the Special Master for specific contested cases. In the Little Colorado River Adjudication, the Department expects to publish the Final Hydrographic Survey Report for the Hopi Indian Reservation in 2010. Over the coming months, the Department and the Special Master will begin formulating specific implementation plans.
The Department is working on reports mandated by both the Zuni Indian Tribe (a catalog of non-exempt registered wells) and Gila River Indian Community (Gila River Maintenance Area) water rights settlements and a report requested by the Special Master on the boundaries of the San Pedro Riparian National Conservation Area. It is also preparing surface geology maps for the mainstem of the Verde River.
The State's budget for fiscal year 2010 was not final until last month. The Department fared better than anticipated, but events may dictate changes in priorities as the fiscal year proceeds.
On April 29, 2009, the Special Master sent the following letter to Arizona State Senators Andy Biggs, Robert "Bob" Burns, Jorje Luis Garcia, Chuck Gray, Albert Hale, Al Melvin, John Nelson, Russell Pearce, and State Representatives Kirk Adams, Jack A. Brown, John Kavanagh, Lucy Mason, John McComish, and Andrew M. Tobin:
- I am writing concerning the FY 2010 budget of the Arizona Department of Water Resources and
its continuing ability to provide technical studies and support for Arizona's two general
stream adjudications.
- The Gila River and Little Colorado River Adjudications address the quantification of water
rights practically throughout our entire State. The objective is to determine the extent
and priority of all state, federal, municipal, Indian, and private water right claims to
surface waters. The Arizona Department of Water Resources provides both technical and
administrative assistance to the Court, functions that have competently been carried
out for nearly three decades pursuant to statutory and case law.
- The progress of the adjudications vitally depends on the Department's ability to do its
technical studies and support in a timely manner. Specific watersheds and claims are
selected for determination based on the completion of this work.
- I appreciate the difficult decisions that must be made to craft a budget in these times.
I simply ask that the Department be treated fairly and equitably, and that its vital
importance to the progress of the general stream adjudications be kept in mind as
budget discussions continue.
Preliminary Hydrographic Survey Report for the Hopi Indian Reservation: On June 30, 2009, parties filed comments to the Preliminary Hydrographic Survey Report for the Hopi Reservation. A final HSR is anticipated in 2010. The report addresses the water rights claimed by the Hopi Tribe and the United States on the Tribe's behalf for use on the Hopi Reservation. The Hopi Tribe, Navajo Nation, Peabody Energy Corporation, Salt River Project, a large group of municipal, business, and agricultural claimants, and the City of Flagstaff submitted comments to the Department.
Hopi Tribe Claimed Rights to Off-Reservation Surface Water: The Court ruled 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 requested reconsideration of the order. On August 26, 2009, the Court denied the request.
Hopi Indian Reservation Legal Issues for Resolution: The Court held a telephonic hearing on July 16, 2009, to consider comments about commencing briefing schedules to address four legal issues involving the Hopi Indian Reservation's claimed water rights. The issues concern the preclusive effects that prior judicial decisions, congressional acts, and future land ownerships may have on the Hopi Tribe or its trustee the United States from claiming water rights. Several parties argued the Court could take up other issues than those the Court had outlined. Following the conference, the Court allowed additional briefing on other issues that can be addressed at this time. A telephonic conference will be held on October 30, 2009.
The Court heard a joint motion made by the Hopi Tribe and Navajo Nation for a limited stay to no later than June 30, 2010, or until the Arizona Department of Water Resources publishes the Final Hopi Indian Reservation HSR. The Court also heard the motion of the United States for a stay of these proceedings. Other parties opposed the motions.
In light of the Hopi Tribe's agreement to file amended water rights claims within 120 days, the Court granted relief insofar as directing the Special Master to extend by 120 days all pending deadlines in the In re Hopi Tribe Priority contested case. In all other respects, the requests for a stay were denied.
Subflow Zone Map of the San Pedro River Watershed: The Arizona Department of Water Resources filed its report entitled "Subflow Zone Delineation Report for The San Pedro River Watershed." The report, prepared pursuant to the Court's September 28, 2005, order, is a major step forward concerning the subflow issue in the Gila River Adjudication.
The report delineates subflow zones along the San Pedro and Babocomari Rivers and Aravaipa Creek, and includes numerous tables, color figures and maps, references, and appendices. The report is not a final determination of the location of the subflow zones in the San Pedro River Watershed, a task the Court will complete.
Claimants may purchase a copy of the report for $100.00 or an electronic copy on DVD for $10.00. Call 1-800-352-8488. The report can be downloaded from the Department's web site at http://www.azwater.gov/dwr (look under "Subflow Zone Report on the San Pedro River Watershed"). The report can be reviewed at the Department's Tucson Active Management Area Office and the Benson, Bisbee Copper Queen, Mammoth, and Sierra Vista Public Libraries.
Claimants are entitled to file a formal objection to the report. Objections must be filed with the Clerk of the Maricopa County Superior Court, Attention: Water Case, 601 West Jackson Street, Phoenix, Arizona 85003. An objection form is available on the Department's web site or call 1-800-352-8488 to request a form.
The last day to file an objection is Monday, December 28, 2009.
Gila River Adjudication Steering Committee: The Court began a process to review the current membership of the Steering Committee and consider modifications that should be made to Pre-Trial Order No. 1 (May 30, 1986) concerning the committee. Currently, the committee has twenty members. The Court wants to know which members wish to remain on the committee and which counsel wish appointment. The Court invited claimants and the Arizona Department of Water Resources to submit proposed modifications to Paragraph 9 of Pre-Trial Order No. 1.
On August 26, 2009, the Special Master filed a report describing the responses received. The report lists the attorneys who wish to remain members and wish appointment and describes the proposals the Arizona Department of Water Resources made to modify Paragraph 9.
In re Aravaipa Canyon Wilderness Area: The Special Master requested the United States to amend its statements of claimant concerning federal reserved water rights for both the Aravaipa Canyon and Redfield Canyon Wilderness Areas. Both wilderness areas are located in southern Arizona. On July 17, 2009, the United States asked for additional time until December 31, 2011, to submit the amendments for both wilderness areas as two field seasons will be needed to compile updated technical data.
After considering comments for and against, the Special Master organized a contested case to resolve the objections arising from the San Pedro Hydrographic Survey Report concerning only the Aravaipa Canyon Wilderness Area. Seven initial issues involving the claims of the United States to federal reserved water rights will be briefed. Disclosure, discovery, and briefing schedules are set. Claimants who wish to participate in this case may request to intervene. The United States has until December 11, 2011, to file amendments to its claims for the Aravaipa Canyon Wilderness Area. The Special Master set the same deadline for the United States to file amendments to its claims for the Redfield Canyon Wilderness Area.
In re San Pedro Riparian National Conservation Area: The Special Master designated two additional issues for briefing and oral argument and scheduled consideration of the Arizona Department of Water Resources' report due September 11, 2009. A series of legal issues concerning the creation of the national conservation area were briefed and determined as reported in the January-April 2009 issue of the Bulletin.
In re Powers Garden Administrative Site: On April 29, 2009, the United States reported that settlement negotiations continue among the litigants in this case. The United States "believes the informal settlement process is still viable." On July 15, 2009, the Special Master directed the United States to file by September 18, 2009, a proposed agreement or a status report concerning settlement negotiations. The Special Master has offered to hold a telephonic conference if one would move negotiations forward.
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 hearing days.
After its motion to dismiss the Salt River Project's application was denied, the Wiertzema Family Trust renewed its motion to dismiss based on new information obtained. The Project opposed the renewed motion to dismiss. The Court set a briefing schedule to hear the motion.
On April 24, 2009, the Court held a telephonic conference in the matters involving Respondents Henry, Kasper, Largent, Ray, and Stryker. The Court previously requested joint comprehensive pretrial memoranda from the parties. SRP 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 was held on July 16, 2009. The Court ordered parties to file joint pretrial orders on or before August 14, 2009, set a pretrial conference on March 16, 2010, and an evidentiary hearing on March 30 and 31, 2010.
Records Retention and Disposition: The storage of court and other records is an important function of the Special Master's office. Until recently, our records were stored in the State of Arizona's Records Management Center. In June, all the records stored in the Center were moved to the Clerk of the Maricopa County Superior Court. The Clerk's storage services will be used to house and dispose of the Special Master's records in accordance with the administrative orders of the Arizona Supreme Court. Records meeting archival standards will continue to be sent to the State of Arizona's Archives.
The Maricopa Lawyer Magazine: The Maricopa Lawyer, a publication of the Maricopa County Bar Association, published an article celebrating the recent thirtieth anniversary of the Gila River Adjudication. Go to page 3 to read the article, a collaborative work of the Clerk of the Maricopa County Superior Court and the Special Master.
Mary G. Davidson: Mary is now a trial attorney with the National Labor Relations Board. She was with Ballard Spahr Andrews & Ingersoll, L.L.P. We wish her well!
W. Patrick Schiffer: Pat retired as Chief Counsel of the Arizona Department of Water Resources. Pat ably represented the Department for nearly 24 years and was involved in many of the important regulatory matters that came before the Department. We wish him all the best!
Link here to the calendar of proceedings.
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