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|Arizona Supreme Court Interlocutory Appeals|
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 seek review of the Superior Court's approval of the settlement agreement. The Arizona Supreme Court heard oral argument in both appeals on November 3, 2009. A decision is forthcoming.
|Little Colorado River Adjudication|
Little Colorado River Adjudication Briefing Issues: The Court held a telephonic conference on October 30, 2009, concerning suggestions for additional issues to brief and matters related to the preparation of the Final Hydrographic Survey Report for the Hopi Indian Reservation. After considering comments, the Court set for briefing the issue suggested by Catalyst Paper (Snowflake) Inc. whether the Hopi Tribe is precluded from claiming a right to water associated with the Hopi Industrial Park based on aboriginal rights. The industrial park is located near Winslow. A second order addressed issues, raised by the Navajo Nation, concerning the reporting work of the Arizona Department of Water Resources for the Final Hopi Indian Reservation Hydrographic Survey Report. The final HSR will be published in 2010.
In re Hopi Tribe Priority: The Special Master extended the pending four prospective deadlines pursuant to the Court's directive. The briefing schedule is in its last stages. Oral argument is anticipated to be held before the end of 2010. This case addresses the question referred by the Court 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."
Catalog of Non-Exempt Registered Wells: On December 18, 2009, the Arizona Department of Water Resources released a catalog of non-exempt registered wells located in the Eastern Little Colorado River Basin. ADWR compiled the catalog in accordance with the Zuni Indian Tribe Water Rights Settlement approved by the Court on November 27, 2006. The purpose of the catalog is to identify and verify existing, non-exempt registered wells in the area by registration number, legal description, and owner.
ADWR prepared and distributed a preliminary catalog in December 2008 and received comments from several parties. This final catalog addresses comments on the preliminary and includes results from a voluntary well registration program. The settlement agreement recognizes that there could be "existing wells that are not currently registered" in the project area and specifies that a voluntary well registration program be created to allow for registration of these wells and their inclusion into the catalog.
The settlement agreement allows the catalog to be supplemented with existing wells that were omitted, and well owners can object to the Court that the catalog contains an improper description of a well they own. The Zuni Tribe and United States can also object that well descriptions are inaccurate. The Court will resolve any objections as to the accuracy of the catalog. Copies of the catalog are available for review at several public locations and on ADWR's website site at www.azwater.gov.
In re Sands Group of Cases: On January 26, 2010, the Special Master will meet with the staff of the Arizona Department of Water Resources to discuss the commencement and completion of the work the Court directed in this contested case. The work concerns the summary adjudication process approved by the Court in 2002 for all existing de minimis uses that meet the Sands criteria for certain small domestic, stockpond and stockwatering uses. Special Master John Thorson held hearings and recommended a summary adjudication process.
In re San Pedro Riparian National Conservation Area: The Special Master granted the request of the United States to stay the filing of the Arizona Department of Water Resources' technical report due on September 11, 2009, and directed the United States to file a status report on or before September 30, 2009. The United States requested a stay of the report because it needed more time to resolve two issues that arose that would affect the report, namely, the determination of the land status of a railroad right-of-way within the conservation area and the status of the official legal description and map of the area.
Following a telephonic conference to discuss these matters, the Special Master directed the United States to provide an updated list of lessees, allottees, and permittees associated with the conservation area and file a report concerning efforts to obtain information from the National Archives and other sources related to the exterior boundaries and the railroad right-of-way. The Special Master requested the United States to continue its cooperation with ADWR to provide information.
On November 17, 2009, at the request of the United States, the Special Master extended the times to file responsive memoranda and replies to the motions filed concerning the two issues currently being briefed. On December 9, 2009, upon the stipulated request of the parties participating in the briefing, the Special Master again extended the times to file responsive memoranda and replies.
In re Fort Huachuca: The Court set a hearing on November 19, 2009, to consider the objections to the Special Master's report. The Court reset the hearing to January 28, 2010, for a full court day. The hearing will be held at the Juvenile Court Center, 3131 West Durango, Phoenix, as Judge Ballinger has rotated to the Juvenile Division.
In re PWR 107 Claims: The Special Master requested the San Carlos Apache Tribe to report on the outcome or 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.
In re Aravaipa Canyon Wilderness Area: The Special Master has organized a contested case to resolve the objections arising from the San Pedro Hydrographic Survey Report concerning this wilderness area located in southern Arizona. 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. The United States has until December 11, 2011, to file amendments to its water rights claims. The Special Master also directed the same deadline for the United States to file amendments to its claims for the Redfield Canyon Wilderness Area.
The Special Master granted the motions of the Bayless & Berkalew Company and Freeport-McMoRan Corporation to intervene. These parties can participate as litigants in the current briefing of legal issues. Claimants who wish to participate in this case may request to intervene.
In re Powers Garden Administrative Site: The United States requested the Special Master to designate an issue for briefing and set times for initial disclosures and a briefing schedule. The Special Master granted the request and designated the issue for determination. A briefing schedule including disclosures and discovery is set. The issue is whether the United States is entitled to a federal reserved water right that includes the use of water for irrigation and stockwatering purposes at the Powers Garden Administrative Site in the Coronado National Forest.
In re Applications of Salt River Project for Injunctive Relief: Four matters are proceeding. In the matter involving Respondent NBJ Ranch, L.P., the Court held a 2.5-day evidentiary hearing. Both the Salt River Project and NBJ Ranch presented expert witnesses, over 100 exhibits involving technical reports and analyses, and other witnesses. The issue is whether the NBJ Ranch is withdrawing subflow from the Verde River for use on a parcel of land that does not have appurtenant surface water rights. At the conclusion of the hearing, the Court requested the parties to submit memoranda concerning the need for an injunctive security bond. A ruling is forthcoming following the submission of memoranda.
After the Court denied its motion to dismiss the Salt River Project's application for an injunction, Respondent Wiertzema Family Trust renewed the motion to dismiss based on new information obtained. The Salt River Project opposed the renewed motion to dismiss. The Court granted the renewed motion to dismiss on the ground that the Project was seeking expanded relief that is not within the scope of the hearing the Court agreed to undertake. Thereafter, the Trust filed a request for attorneys' fees and costs to be paid by the Salt River Project. The Court has not ruled on the request.
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 all parties. The Salt River Project and Respondents Kasper and Stryker filed a joint pretrial memorandum and a proposed scheduling order. The other parties did not attend the conference. The Court held another telephonic conference on July 16, 2009. The Court ordered the 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.
In the matters involving Respondents Linda and Paul Robinson and Chester-Campbell, L.L.C., the Court set oral argument on December 4, 2009, for the motions for summary judgment filed by the Salt River Project. The parties stipulated to vacate the argument because they are discussing a mutual resolution of the disputed issues. The Court vacated the oral argument. A new date has not been set.
Thomas G. Carr: After 32 years serving in various management capacities with the Arizona Department of Water Resources, Tom retired. Tom's last position was Assistant Director and Manager of the Statewide Planning Division, where he oversaw the Adjudications program. Tom worked in every major area of the department from water use planning to the implementation of the 1980 Groundwater Management Act to resolution of complex interstate Colorado River issues. He brought an impressive knowledge of water, science, and planning to every project garnering the highest respect of his professional peers and diverse water users throughout Arizona and the Southwest. We wish Tom a happy journey in his future endeavors.
Scott M. Deeny: Arizona Department of Water Resources Deputy Counsel Scott Deeny returned to the private practice of law. Scott worked on many important regulatory matters and assisted in several adjudications cases. Scott joined the law firm of Salmon, Lewis and Weldon, P.L.C. Our appreciation and best wishes go to Scott.
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