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De Minimis Claims for Water Rights
Thousands of claims for water rights have been filed in the San Pedro watershed for stock and domestic uses. Many of these claims involve relatively small amounts of water. The court has determined that stock watering and certain stockponds and domestic uses qualify as de minimis claims which are defined as "water uses found to be sufficiently small so that the costs of a detailed adjudication of the uses outweigh the benefit" of an extended adjudication. Memorandum Decision, Findings of Fact and Conclusions of Law, dated November 14, 1994, amended February 23, 1995, approved and modified September 27, 2002, p. 5 (De Minimis Decision). Two contested cases are now in process to adjudicate hundreds of these claims.
In re Sands Group of Cases: This case concerns approximately 500 claims for water uses that involve water used on land owned by private parties, the State of Arizona and the United States. At a hearing in September 2016, counsel for Bayless & Berkalew Company proposed that 20 test cases should be designated for the purposes of considering water rights for water used on state trust land and private land. Following meetings with the State Land Department, Bayless & Berkalew Company will file a report on March 10, 2017, concerning the selected water rights which will be the subject of a hearing on April 5, 2017. During this same time period, the parties will review their claims and take the action necessary to comply with Pre-Trial Order No. 4 and will submit suggested changes to the abbreviated list of water attributes for each claim issued by the Special Master in June 2016 as corrected by the United States, the Arizona State Land Department and the Arizona Department of Water Resources.
In re Pima County: The Special Master initiated this case to adjudicate certain claims for water rights that Sands Investment Company assigned to Pima County. Abstracts for proposed water abstracts have been prepared and issued. Currently they are the subject of a 60-day period during which the parties can suggest any corrections to the listed water attributes.
The Arizona Department of Water Resources expects to issue by late January 2017, a pilot program that will eventually identify and prepare an initial catalog of the water right attributes for the remaining de minimis claims in the San Pedro watershed. The pilot program is expected to address the claims for de minimis water uses in the southern sections of the watershed.
In re Fort Huachuca: Trial began on the United States' claims for water rights to surface water and groundwater for use on the Fort Huachuca base. After three weeks, the trial was continued to February 2017 for an additional two weeks.
The claims of the Hopi Tribe and the Navajo Nation dominate the adjudication of the Little Colorado watershed.
Hopi Tribe:
The Court remanded to the Special Master the determination of the dates that the federal government acquired the land in the Hopi Reservation for the purposes of determining priority dates. The Special Master reviewed in excess of 90 title documents provided by the federal government and submitted a report in September 2016 identifying the dates of acquisition. The parties have had an opportunity to review the report and have filed their objections and proposed corrections.
During the last four months of 2016, the Special Master reviewed the objections filed to the HSR prepared by ADWR for water uses on the Hopi Reservation. The Special Master summarily dismissed four of the objections as untimely and set 13 objections for oral argument to allow the objecting parties an opportunity to argue their positions. Following the arguments, at which three of the people filing objections appeared the Special Master entered decisions finding that the objections did not satisfy the statutory requirements that require specific objections to the report prepared by Arizona Department of Water Resources concerning the Hopi Tribe's use of water on the Hopi Reservation.
During this same period the Navajo Nation filed a motion to amend the case management order to require the United States and the Hopi Tribe to provide more specific information about the water right attributes of their claimed uses and additional information about their experts. In addition the Navajo Nation sought a two month extension of the deadline to file its expert reports to allow it to fully investigate water uses during the spring growing season. The United States represented at the oral argument that its expert reports due on January 23, 2017, would provide much of the specific information requested and argued that no decision on this point should be made until the expert reports were filed. The Special Master granted the Navajo Nation's motion with respect to the time requested and additional information regarding the experts and set a hearing on March 1, 2017 to consider the parties' objections to the adequacy of the information provided in the expert reports.
Navajo Nation:
After considering the information and arguments presented by the parties, the Special Master entered an order for the filing of amended statements of claimants by the Navajo Nation and the United States on behalf of the Navajo Nation during the period 2018-2020 and the expected timing of ADWR's preparation of three HSRs that will analyze the amended claims. The amended statements of claimant that the Navajo Nation will file will each deal with separate categories of water uses. This approach was adopted to permit ADWR to begin to investigate the amended claims without the need to wait until all claims had been amended, which the Navajo Nation represented could take as long as five years. With respect to the first amended statement of claimant, which will be the subject of a final HSR that should be filed in 2019, the dates for disclosure and expert reports have been set as well as discovery deadlines to allow trial on any objections to ADWR's HRS to begin within approximately 27 months of its filing.
Arizona Department of Water Resources (ADWR) Meeting Pursuant to the Notice of Meeting filed September 20, 2016, Special Master Susan Ward Harris met with Jeff Trembly, Adjudications Program Director, to discuss analysis of stockpond capacity in de minimis cases. The meeting was held on October 28, 2016, at 9:00 a.m. at the offices of Arizona Department of Water Resources, 1110 W. Washington St., Suite 310, Phoenix, Arizona 85067.
Link here to the calendar of proceedings.
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