Superior Court >General Stream Adjudication >Adjudication Bulletin

Arizona General Stream Adjudication Bulletin
Vol. 20, No. 3
September-December 2012

Welcome to the Arizona General Stream Adjudication Bulletin

The Office of the Special Master publishes the Bulletin three times a year to provide information about proceedings in the Gila River Adjudication and the Little Colorado River Adjudication.

Departments:

Calendar
Archive

Editor: Barbara K. Brown
Office of the Special Master
Maricopa Superior Court
Central Court Building 5B
201 West Jefferson
Phoenix, AZ 85003-2205
Tel. 602-372-4115

The Bulletin relies on links so the entire document is available to our readers. Always check our What's New page for up-to-date notices and documents.

Farewell to Judge Eddward P. Ballinger, Jr.

Judge Eddward P. Ballinger, Jr., who presided over the Gila River Adjudication (since December 19, 2000) and Little Colorado River Adjudication (since January 17, 2002), has been appointed a judge of the federal Bankruptcy Court for the District of Arizona. When asked to reflect on his long tenure as the Water Judge, Judge Ballinger stated as follows:

"Presiding over Arizona's water adjudications has been one of the most interesting, challenging, and at times, frustrating experiences in my life. I have always kept in mind the economic and historical significance of the proceedings and have strived to ensure that important decisions were made only after providing the opportunity for input from all interested parties.

I am very proud of what Special Master Schade and I have been able to accomplish during the past twelve years, but am mindful that these proceedings have been pending for more than thirty years. My biggest disappointment as a judge is that we have not been able to accomplish more during my tenure due to financial constraints and that current conditions suggest that there will not soon be a substantial increase in the funds dedicated to the task of resolving the thousands of water rights claims remaining to be resolved. Particularly important is the need to expand the capabilities of the Arizona Department of Water Resources, which provides crucial technical assistance to the adjudication court and which is woefully understaffed.

Notwithstanding the impediments to expediting the claims resolution process, it has been a privilege to be involved with resolving such a large number of often complex issues in legal proceedings that have uniformly involved presentations by highly skilled attorneys. I have been a judge for close to fifteen years and the professionalism, skill and quality of representation exhibited by those appearing in the water adjudications is unsurpassed.

It has been an honor to have been trusted with the stewardship of the water adjudications. I am confident that with the expert assistance of Special Master Schade, my successor, Judge Mark Brain, will do an excellent job of resolving the difficult issues affecting Arizona's water rights."

We wish Judge Ballinger continuing judicial success.

Appointment of Judge Mark H. Brain

The Arizona Supreme Court appointed Maricopa County Superior Court Judge Mark H. Brain as the fourth judge assigned to the adjudications. Judge Brain will preside over both the Gila River Adjudication and Little Colorado River Adjudication.

Judge Brain joined the Maricopa County Superior Court in October 2006, as a commissioner, and was appointed a judge in March 2011. He presided over a juvenile calendar from October 2006, to May 2011, and now presides over a civil calendar. While on the bench, he has spoken and taught at numerous venues, including training programs for juvenile judges, Court Appointed Special Advocates, the Foster Care Review Board, mental health professionals involved in juvenile competency proceedings, and at a number of seminars sponsored by the State and Maricopa County Bar Associations regarding civil practice. He has acted as a visiting judge for Pima County in several matters. Prior to taking the bench, Judge Brain was a practicing attorney for 18 years, engaging primarily in civil litigation in which he represented a wide variety of manufacturing and transportation companies, insurers, and other commercial and individual clients. He also served as special counsel for the Arizona Commission on Judicial Conduct. He earned his B.S. degree in physics at Iowa State University in 1985, and his J.D. degree at the University of Michigan Law School in 1988.

Judge Brain was raised on a farm in Iowa. When asked if that upbringing had influenced his legal career, he replied, "Yes, in a couple of senses. First, it's a great way to get a good work ethic - planting and harvest seasons aren't '9 to 5' jobs, and you find a way to get it done while the weather cooperates. Second, it puts one in a mindset to get things done even if they aren't fun (if you've ever cleaned hog-houses, you know what I mean)."

Ms. Renee Ellison is Judge Brain's judicial assistant.

Arizona Supreme Court Interlocutory Appeals

On September 12, 2012, the Arizona Supreme Court issued its opinion concerning whether the State Trust Lands have federal reserved water rights. The Superior Court had 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 Arizona Supreme Court affirmed the Superior Court's ruling. Writing for a unanimous court, Justice A. John Pelander stated that "we find no withdrawal, no reservation for a federal purpose, and no congressional intent to reserve water rights for the State Trust Lands." Thus, "these lands cannot include federal reserved water rights." Noteworthy, is the Court's holding that it "agree[s] with other courts that have adopted a rule of narrow construction for federal reserved water rights, recognizing the doctrine's disruptive effect in prior appropriation jurisdictions."

In 2008, the New Mexico Court of Appeals held that no implied reserved water rights exist for New Mexico's trust lands. Arizona and New Mexico share a similar Congressional history concerning trust lands. The Arizona Supreme Court held that it agrees with the reasoning and conclusion of the New Mexico Court of Appeals. With this decision, the Supreme Court has resolved an important issue for the adjudications.

Court Meets with the Arizona Department of Water Resources

On December 19, 2012, Judge Brain and Special Master Schade met with Sandra A. Fabritz-Whitney, the Director of the Arizona Department of Water Resources (ADWR) and other departmental senior representatives. Because of his recent appointment to preside over the adjudications, Judge Brain was given a primer on hydrology principles. He heard a review of the department's past and current work on the adjudications, and ADWR's expectations for funding in the next two fiscal years. The Court has regularly met with representatives of ADWR to review the status of technical assignments and consider ways to expedite the completion of the adjudications.

Special Procedural Order for Non-Indian Water Rights Settlements

A group of parties requested the Court to establish a process to consider and review non-Indian water right settlement agreements. The existing special procedural orders for Indian water right settlement agreements served as a model. On September 18, 2012, the Court held a hearing to consider all comments and a proposed order the Court had circulated. At the hearing, the request for a special procedural order was withdrawn. When the Court expressed reservations about making an approved settlement binding on non-signatory parties, the parties who advanced the special procedural order withdrew their request.

Little Colorado River Adjudication

In re Hopi Tribe Priority: On September 24, 2012, the Special Master denied the Hopi Tribe's motion in limine to exclude evidence concerning the Navajo Nation's presence and use of water in the Little Colorado River Watershed. The Special Master found that the task of considering the relevancy and excluding all or a portion of the challenged evidence would be a laborious and monumental undertaking in light of the extensive pleadings filed, and the process would likely inject confusion in the upcoming oral argument, even possibly requiring its postponement. The Special Master found that the Hopi Tribe's concerns were not warranted.

On October 24, 2012, the Special Master heard a full day of oral argument on the motions for summary judgment addressing the priority claims of the Hopi Tribe under various arguments, including Spanish and Mexican law. The Hopi Tribe, Navajo Nation, United States, Catalyst Paper (Snowflake) Inc., and the City of Flagstaff presented argument. The Special Master expects to file his report with the Superior Court on or before April 1, 2013.

Gila River Adjudication

Subflow Zone Map of the San Pedro River Watershed: On October 12, 2012, the Court ruled concerning the evidentiary hearing held in January 2012. The Court's findings of fact and conclusions of law provide guidance concerning areas to be included within the subflow zone and the application of setbacks. The Court ruled that the revised subflow zone delineation must:

  1. result in a continuous subflow zone;
  2. result in a stable geologic feature;
  3. include the entire current active channel of each watercourse;
  4. include the Historical Composite Active Floodplain (1935-2007) for each watercourse;
  5. accurately reflect the full extent of the floodplain Holocene alluvium; and,
  6. to the extent possible, interpret judicial pronouncements in a manner consistent with scientific fact.

The Arizona Department of Water Resources (ADWR) shall apply setbacks only in those instances where a hydraulic connection exists between the subflow zone and the surrounding material. ADWR need not apply setbacks in instances in which it reasonably finds that no such hydraulic connection exists.

The Court directed ADWR to prepare a revised Subflow Zone Delineation Report for the entire San Pedro River Watershed to be due on a date to be determined at an upcoming hearing.

Previously, the Court set oral argument on November 8, 2012, on the comments concerning ADWR's report entitled "Subflow Zone Delineation Methodology for the San Pedro River Watershed" (April 20, 2012). The report provides a revised methodology to define the watershed's subflow zone. It is available for download from ADWR's website. Arizona Public Service; ASARCO LLC; BHP Copper Inc.; Freeport-McMoRan Corporation; Bella Vista Water Company, Pueblo Del Sol Water Company, and the City of Sierra Vista jointly; and a group of parties designating themselves the Surface Water Users filed comments concerning ADWR's report. Due to the appointment of Judge Mark H. Brain as the new adjudications judge, Judge Brain reset the oral argument to January 10, 2013.

Meetings of the Gila Steering and Little Colorado Settlement Committees: Pursuant to the Court's request, over the summer both committees considered the future funding of the Special Master's expenses. Following a meeting with a joint working group of both committees, the Special Master filed a report on September 5, 2012, concerning the information he provided to the working group.

On September 28, 2012, the joint working group filed a report containing seven recommendations: (1) a Superior Court judge who devotes not less than ½ of his or her time to the adjudications, (2) the Superior Court's direct adjudication of major claims and elimination, to the extent feasible, of the two-step approach in which those major claims are litigated first before the Special Master and again before the Superior Court, (3) greater funding for the Arizona Department of Water Resources' Adjudication Division to allow it to undertake in a timely manner those tasks assigned to it by the Court or Special Master, (4) greater flexibility for the Court and Special Master in determining which tasks the Department should undertake, and elimination of some legislative directives mandating tasks to be performed by the Department, (5) authorizing the Special Master to participate in mediation directed to resolution of small (though not necessarily de minimis) claims, (6) contested cases should be managed differently depending on whether they involve large water users and claims or small water users and claims, and (7) the Superior Court should consider the creation of a technical committee to prepare consensus-based technical reports and models. Freeport-McMoRan Corporation proposed that clear standards be developed to ensure that decisions will not establish binding precedents that will impact other water users in other watersheds. This proposal did not receive consensus approval.

On October 10, 2012, the full committees approved the seven recommendations and submitted them to the Court. The committees indicated that neither the report of the joint working group nor the committees' approval of that report require any action by the Court.

In re San Pedro Riparian National Conservation Area: This case is addressing quantification issues. The Special Master set a conference on November 28, 2012, to consider the comments filed by ASARCO LLC; Bella Vista Water Company, Pueblo Del Sol Water Company, and the City of Sierra Vista jointly; Salt River Project; and the United States to the May 31, 2012, report of the Arizona Department of Water Resources (ADWR). The report analyzes the federal reserved water rights claims, the quantification methodologies used by the United States, and the state law water rights of the United States. ADWR also updated its prior land ownership reports. The conference was vacated and reset to January 9, 2013.

In re Fort Huachuca: On November 8, 2012, the Special Master ruled on a discovery matter involving the United States and Freeport-McMoRan Corporation. The Special Master granted in part and denied in part the motion of the United States for a protective order, granted the cross- motion of Freeport-McMoRan Corporation to compel production to the extent consistent with the approved protective order, and set new time lines for the continuation of the briefing schedule.

The protective order involved the production of certain portions of a draft and final programmatic biological assessment (PBA) that the United States Army is preparing to submit to the United States Fish and Wildlife Service (Service). The submission will initiate the Army's formal consultation with the Service in compliance with the Endangered Species Act of 1973. The Service is expected to issue a biological opinion. The Special Master found that the portions of the PBA for which the United States sought a protective order are not relevant to the issues being considered at this time.

Regarding a separate request of the United States, the Special Master did not find it necessary to brief the issue of whether compliance with requirements of the Endangered Species Act is a factor in the decree of a water right.

In re PWR 107 Claims: The Special Master requested a status report from the San Carlos Apache Tribe on the Tribe's continuing efforts to resolve the issue concerning the reservation's southwestern boundary. The Tribe is discussing scheduling site inspections with the Bureau of Indian Affairs and Bureau of Land Management. The Tribe suggested May 1, 2013, as the deadline for the next status report.

In re Redfield Canyon Wilderness Area: This case is proceeding through the briefing of seven issues. The Special Master set a conference on November 28, 2012, to hear oral argument on the motion of the United States to stay the order requiring the United States to amend its reserved water rights statement of claimant until after a decision is made concerning the quantity of water reserved for the Aravaipa Canyon Wilderness Area.

Freeport-McMoRan Corporation opposed the motion for a stay. The oral argument was vacated and reset to January 9, 2013.

In re Powers Garden Administrative Site: The litigants in this case have been discussing a mutual resolution of the objections filed to the reserved water right claims of the United States. The Special Master set a conference on November 28, 2012, to consider the status of settlement negotiations. The conference was vacated and reset to January 9, 2013.

In re Applications of Salt River Project for Injunctive Relief: These matters involve applications for injunctive relief filed by the Salt River Project (SRP) against various water users in the Verde River Watershed. Several of these matters have been resolved. The parties in the remaining cases have been discussing a mutual resolution. SRP filed a motion for summary judgment. In the matters involving respondents Henry and Kasper, on August 14, 2012, at the request of the parties, the Court extended the date to February 20, 2013, for respondents to answer SRP's motion. In the matters involving Respondents Robinson and Chester-Campbell, L.L.C., on September 10, 2012, at the request of the parties, the Court also extended the date to February 20, 2013, for these respondents to answer SRP's motion.

Calendar

Link here to the calendar of proceedings.

Index
Arizona General Stream Adjudication Bulletin
January 2011 - December 2012

From the first issue in April 1993, through 1997, the Bulletin was published ten 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 2000-August 2001; September 2001-December 2003; January 2004-December 2004; January 2005-December 2006; January 2007-December 2008; and January 2009-December 2010.

Farewell to Judge Eddward P. Ballinger, Jr.
  September-December 2012

Appointment of Judge Mark H. Brain
  September-December 2012

Arizona Supreme Court Interlocutory Appeals
  In re State Trust Lands, No. WC-11-0001-IR
  January-April 2011; September-December 2011; January-April 2012;
  May-August 2012; September-December 2012

Court Meets with the Arizona Department of Water Resources
  September-December 2012

Audit Report of Claimants' Filing Fees
  January-April 2012

E-mail Distribution Lists
  May-August 2011

From Whom to Obtain Information
  January-April 2011; January-April 2012

Meetings of the Gila Steering and Little Colorado Settlement Committees
  May-August 2012; September-December 2012

New Director of the Arizona Department of Water Resources
  January-April 2011

Special Procedural Order for Non-Indian Water Rights Settlements
  January-April 2011; May-August 2011; September-December 2011;
  January-April 2012; May-August 2012; September-December 2012

The Arizona General Stream Adjudication Web Site
  May-August 2012

Updated Court Approved Mailing Lists
  May-August 2011; May-August 2012

Little Colorado River Adjudication
  In re Hopi Tribe Priority
  January-April 2011; May-August 2011; September-December 2011;
  January-April 2012; May-August 2012; September-December 2012

Gila River Adjudication
  Subflow Zone Map of the San Pedro River Watershed
  January-April 2011; May-August 2011; September-December 2011;
  January-April 2012; May-August 2012; September-December 2012

In re Applications of Salt River Project for Injunctive Relief
  January-April 2011; May-August 2011; September-December 2011;
  January-April 2012; May-August 2012; September-December 2012

In re Sands Group of Cases
  May-August 2011; September-December 2011

In re San Pedro Riparian National Conservation Area
  January-April 2011; May-August 2011; January-April 2012;
  May-August 2012; September-December 2012

In re Fort Huachuca
  September-December 2011; January-April 2012;
  September-December 2012

In re PWR 107 Claims
  January-April 2011; May-August 2011; September-December 2012

In re Redfield Canyon Wilderness Area
  January-April 2012; May-August 2012; September-December 2012
  In re Aravaipa Canyon Wilderness Area
  January-April 2011; May-August 2011; September-December 2011;
  January-April 2012; May-August 2012

In re Powers Garden Administrative Site
  January-April 2011; May-August 2011; September-December 2011;
  January-April 2012; September-December 2012

Other News

Richard T. Burtell
January-April 2011

M. James Callahan
May-August 2011

Kristina A. Fredericksen
May-August 2012

David A. Keadle
May-August 2011

Robin Tomlinson
May-August 2011

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