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Judge Ballinger and Special Master Schade met with the Director of the Arizona Department of Water Resources and other representatives on November 9, 2010, to discuss the current and prospective resources available for adjudication projects and other matters related to insuring that pending proceedings move forward expeditiously. The Court and the Department meet at least annually.
During the past year, the Department has suffered a significant reduction in staff and resources in line with other state agencies. The Department has been implementing ways to deal with the reduction. It is not expected that the adjudications work will be greatly affected although adjustments may have to be made.
The Court granted the Special Master's motion to approve his report 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 The Court held that the "trust lands at issue here were not withdrawn from the public domain and reserved for a federal purpose and, therefore, as a matter of law, cannot be deemed to possess federal implied reserved water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 Court's approval of the report was limited to the findings of fact and conclusions of law that addressed withdrawal and reservation. The Special Master considered other issues raised by the litigants, but the Court ruled that those "matters need not be addressed in light of the ruling that an implied reserved water right does not exist for Arizona state trust lands." The Court's ruling agrees with a decision of the New Mexico Court of Appeals for which the United States Supreme Court denied a petition for review on April 27, 2009. The ruling determines a significant legal issue for Arizona's general stream adjudication.
On December 8, 2010, President Barack Obama signed into law the Claims Resolution Act of 2010 approving the White Mountain Apache water rights settlement. On November 30, 2010, the United States Senate passed the Act, which also involved water rights settlements in Montana and New Mexico and resolved pending claims against the United States. It is anticipated that the Court will consider the agreement for approval later this year.
The Western States Water Council reported that:
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"Title III of the bill authorizes $292 million for the White Mountain Apache settlement in
Arizona, including the construction of a rural water system as its centerpiece. Of this amount,
the bill includes 'mandatory appropriations' of $126 million to plan, design, and construct the
water system. It would also recognize a tribal entitlement to 23,782 acre feet per year of Central
Arizona Project water, which the Tribe could lease to cities in the Phoenix metro area. . Of note,
the package immediately provides $180 million to the Reclamation Water Settlements Fund to implement
the Navajo Nation's settlement with New Mexico, which Congress authorized as part of the Omnibus
Public Lands Management Act of 2009. The funds will be used to construct the Navajo-Gallup pipeline.
. [Arizona] Senator Jon Kyl, who introduced authorizing legislation for the White Mountain Apache
settlement, said it will provide certainty to Arizona water users and will provide the tribe with
a '... clean, reliable source of drinking water'."
In re Hopi Tribe Priority: The Special Master held a telephonic conference on October 14, 2010, concerning the status of the proposed water rights settlement agreement involving the claims of the Hopi Tribe and the Navajo Nation. Based upon the comments made, the Special Master suspended the remaining deadlines in the current briefing schedule until further ordered and requested the Navajo Nation to file a report by December 15, 2010, concerning the status of the agreement.
The Navajo Nation reported that on November 4, 2010, the Navajo Nation Council approved the version of the settlement agreement dated June 29, 2010. The Council authorized the President of the Nation to execute the agreement in the form of or substantially similar to the form of that version. The parties and legal counsel continue to meet every other week and work to complete various exhibits to the agreement and to draft authorizing legislation. The Hopi Tribe Council will consider the agreement next followed by the non-tribal parties.
The Special Master requested comments concerning the completion of the Final Hopi Indian Reservation Hydrographic Survey Report. Both the Hopi Tribe and the Navajo Nation favor continuing work on the Final HSR. The Catalyst Paper (Snowflake) Inc. company suggested that it be determined what work the Arizona Department of Water Resources can complete in light of its budget situation.
Subflow Zone Map of the San Pedro River Watershed: On March 15, 2011, the Court will hear the objections of several claimants that present substantive legal and technical issues. The Court directed the Arizona Department of Water Resources (ADWR) to submit a report by December 31, 2010, identifying the objections and comments with which ADWR agrees or does not take issue and providing information in response to a specific objection or comment. On December 8, 2010, the Court extended this deadline to January 31, 2011. On December 16, 2010, the Court invited comments from parties concerning the time allotment and procedures for the hearing to be held in March 2011.
The Court referred to the Special Master the task of proceeding in the best manner to determine the remaining objections and comments. The Special Master held a conference on December 14, 2010, in Sierra Vista, to begin the process of resolving the objections referred to him. On December 20, 2010, the Special Master provided an opportunity for the objectors to supplement their objections, granted the motion of the San Carlos Apache Tribe to intervene, and added several parties to the Court approved mailing list of the case.
In re Aravaipa Canyon Wilderness Area: This contested case is going through its initial round of briefing designated legal issues. The Special Master granted the unopposed request of the United States for an additional two weeks to complete discovery. On December 28, 2010, the Special Master granted the unopposed request of the United States to extend by six weeks the deadlines for filing motions, responses, and replies.
In re Powers Garden Administrative Site: The Special Master heard argument on the issue whether the United States is entitled to a federal reserved water right that includes the use of water for irrigation and stock watering purposes at the Powers Garden Administrative Site. He determined that the United States does not have separate primary reserved water rights for irrigation and stock watering. The reserved water rights of the site must serve the primary purposes of preserving timber and securing favorable water flows, but a portion of those water rights can be allocated for domestic, irrigation, stock watering, and firefighting uses as long as the water is used only by Forest Service employees, volunteers, and independent contractors, and the water uses are directly related to and consistent with the primary purposes of national forests. These conditions do not limit or substitute any other requirements imposed by the law of reserved water rights. The amounts of each water use will be determined in the quantification phase of this case.
In re Applications of Salt River Project for Injunctive Relief: Five separate matters are proceeding in the Verde River Watershed. The matter involving NBJ Ranch L.P. continues to await the efforts of the parties to reach a mutual resolution. The Court has not entered a judgment.
Wiertzema Family Trust: The Wiertzema Family Trust requested an award of attorney's fees, expert witness and consultant fees. The Salt River Project opposed the motion. Following a hearing held on June 21, 2010, on October 21, 2010, the Court denied the fees award requests.
Henry, Kasper, Ray, and Stryker: The Salt River Project filed a motion for summary judgment. On August 16, 2010, at the request of the parties, the Court extended until January 24, 2011, the time to respond to the Project's motion.
Robinson and Chester-Campbell, L.L.C: The parties are discussing a mutual resolution. On November 8, 2010, at the request of the parties, the Court granted the respondents until July 15, 2011, to file a response to the Salt River Project's motion for summary judgment.
Link here to the calendar of proceedings.
January 2009 - December 2010
From the first issue in April 1993, through 1997, the Bulletin was published 10 times each year (monthly, except July and December). From January 1998 to July 2000, the Bulletin was published quarterly. After that time, printed editions were published for August-December 2000 and January-May 2001. The first online edition was dated June-August 2001. Subsequent issues will be published only online in January, May, and September (or more frequently as events warrant). All issues since October 1996 are available on our Web site; contact the Office of the Special Master for earlier issues.
Previous indexes are in the following issues: April 1995, April 1996, April-May 1997, April-July 1998, March-April 1999, April-July 2000, September-December 2001, September-December 2003, January-April 2005, May-August 2007, and September-December 2008.
Arizona Supreme Court Interlocutory Appeals
In re Proposed Gila River Indian Community Water Rights Settlement, Interlocutory
Appeals No. WC-07-0001-1R and WC-07-0003-1R (Contested Case No. W1-207),
January-April 2009; September-December 2009; January-April 2010;
May-August 2010
Contacts and Assistance
January-April 2009
Court Approved Mailing Lists
January-April 2009; May-August 2010
In re State Trust Lands Contested Case
January-April 2010; May-August 2010; September-December 2010
Letter to the Editor of the Arizona Attorney Magazine
January-April 2010
Meeting of the Court and Arizona Department of Water Resources
January-April 2009; May-August 2009; May-August 2010; September-December 2010
The Gila Appellate Opinions
January-April 2010
The Special Master's Letter to Legislators
May-August 2009
Little Colorado River Adjudication
Hopi Indian Reservation Legal Issues for Resolution
May-August 2009; September-December 2009
Hopi Tribe Claimed Rights to Off-Reservation Surface Water
January-April 2009; May-August 2009
In re Hopi Tribe Priority
January-April 2009; September-December 2009; January-April 2010
May-August 2010; September-December 2010
Little Colorado River Adjudication Briefing Issues
September-December 2009; May-August 2010
Preliminary Hydrographic Survey Report for the Hopi Indian Reservation
January-April 2009; May-August 2009; September-December 2009
The Arizona Department of Water Resources Preliminary Catalog of Non-Exempt
Registered Wells
January-April 2009; September-December 2009
Gila River Adjudication
Subflow Zone Map of the San Pedro River Watershed
January-April 2009; May-August 2009; May-August 2010; September-December 2010
In re Sands Group of Cases
September-December 2009; January-April 2010
In re San Pedro Riparian National Conservation Area
January-April 2009; May-August 2009; September-December 2009
January-April 2010; May-August 2010
In re Fort Huachuca
September-December 2009; January-April 2010; May-August 2010
In re PWR 107 Claims
January-April 2009; September-December 2009; January-April 2010
In re Aravaipa Canyon Wilderness Area
January-April 2009; May-August 2009; September-December 2009
January-April 2010; September-December 2010
In re Powers Garden Administrative Site
January-April 2009; May-August 2009; September-December 2009;
September-December 2010
In re Applications of Salt River Project for Injunctive Relief
January-April 2009; May-August 2009; September-December 2009
January-April 2010; May-August 2010; September-December 2010
Gila River Adjudication Steering Committee
May-August 2009; January-April 2010
Other News
Mailing Addresses with Arizona Department of Water Resources
January-April 2010
Online Archive of Indian Water Rights Settlements
January-April 2010
Orr Ditch Decree Litigation
January-April 2010
Records Retention and Disposition
May-August 2009
The Maricopa Lawyer Magazine
May-August 2009
William D. Baker
May-August 2010
Thomas G. Carr
September-December 2009
Mary G. Davidson
May-August 2009
Scott M. Deeny
September-December 2009
Lin Fehlmann
January-April 2009
Gregg A. Houtz
May-August 2010
W. Patrick Schiffer
May-August 2009
Lee Storey
January-April 2009
Michael B. Whiting
January-April 2009
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