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|Streamlining the Adjudications|
The Court held a hearing on April 25, 2013, on a request to consider ways to improve the adjudications given the reduced levels of funding and staff of the Arizona Department of Water Resources (ADWR). The request was based on last October’s report of Court appointed committees concerning the funding of the Special Master. The committees made several recommendations for streamlining the adjudications which were reviewed in the September-December 2012 issue of the Bulletin. Parties were invited to suggest specific improvements, and ADWR was directed to respond. The Court expressed interest in considering ways to streamline the adjudications.
Eighteen parties submitted comments and ADWR filed a memorandum. Key suggestions addressed the scope of Indian and non-Indian hydrographic survey reports (HSRs), the Court assuming some of the current contested cases in order to conduct the evidentiary hearings, completing subflow zone maps of selected watersheds, involving the Special Master in mediating large or complex matters, and undertaking the summary adjudication of de minimis water claims. ADWR suggested addressing the scope, or subjects considered in HSRs, as a way to expedite their completion, an idea the Court favored. The hearing was well attended.
|Little Colorado River Adjudication|
In re Hopi Tribe Priority: On April 24, 2013, the Special Master filed a report with the Court. The Special Master found that the Hopi Tribe holds water rights with a priority of time immemorial only in the area within Land Management District 6 and not on other tribal lands; the Hopi Tribe does not hold water rights with a priority date of 1848 as a result of the Treaty of Guadalupe Hidalgo as the treaty did not create or establish water rights; the Hopi Tribe holds an implied reserved water right with a priority of December 16, 1882, to the Hopi Partitioned Lands within the 1882 Executive Order Reservation and to Moenkopi Island with a priority of June 14, 1934. The Hopi Tribe’s aboriginal water rights were incidents of aboriginal title, and the extinguishment of the Hopi Tribe’s aboriginal title to certain lands, as determined by the Indian Claims Commission in the 1970s, terminated aboriginal water rights to those lands. No findings of fact, conclusions of law, and recommendations were made regarding the priority of water rights for the Hopi Industrial Park and the Aja, Clear Creek, Drye, and Hart Ranches, land acquisitions which are not part of the Hopi Indian Reservation.
The report considered other issues. The Hopi Tribe is precluded from asserting claims of aboriginal title that were litigated and determined by the Indian Claims Commission, but is not precluded from asserting a reserved water right. Non-parties to the prior litigation before the Indian Claims Commission and partition cases may assert claim and issue preclusion. The settlement of the Hopi Tribe’s action before the Indian Claims Commission was an accord and satisfaction of claims to aboriginal title to land but not water rights. Finally, the issue whether the Hopi Tribe can assert a senior priority to water resources shared with the Navajo Nation cannot be resolved by summary judgment.
|Gila River Adjudication|
Subflow Zone Map of the San Pedro River Watershed: On January 10, 2013, the Court heard oral argument on the comments concerning the Arizona Department of Water Resources’ report entitled “Subflow Zone Delineation Methodology for the San Pedro River Watershed” (filed April 20, 2012). The report, which provides a revised methodology to define the watershed’s subflow zone, was the subject of comments. On January 15, 2013, the Court requested the department to prepare a revised Subflow Zone Delineation Report for the San Pedro River Watershed on or before April 1, 2014, consistent with Judge Ballinger’s October 12, 2012, order.
In re San Pedro Riparian National Conservation Area: This case is addressing quantification issues. The Special Master held a conference on January 9, 2013, to consider the comments filed 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 concerning the boundaries of the conservation area.
Following the conference, the Special Master gave parties sixty days to recommend issues for an evidentiary hearing concerning the federal reserved water rights claims. The Special Master ruled that the pending applications of the United States for an appropriative instream flow right water right filed with the Arizona Department of Water Resources will not be considered until the department rules on the applications or the United States withdraws the applications. All parties were strongly encouraged to explore a settlement.
In re Fort Huachuca: On February 27, 2013, the Special Master granted a stipulated request to extend the time lines for completing discovery and exchanging expert reports. The United States and Freeport-McMoRan Corporation are engaged in extensive discovery and need additional time to complete discovery and file expert reports.
In re Redfield Canyon Wilderness Area: This case is proceeding through the briefing of seven issues. On January 9, 2013, the Special Master heard 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. On January 17, 2013, the Special Master denied the motion to stay and set new time lines for the continuation of the briefing.
In re Aravaipa Canyon Wilderness Area: On March 22, 1013, the United States was granted additional time to file its expert reports, and future time lines were modified.
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 held a conference to consider the status of negotiations. On January 14, 2013, the Special Master ordered a period of 120 days to determine if a settlement agreement can be reached and set a schedule for its consideration if an agreement is executed. If an agreement is executed, the United States will be directed to submit to the Arizona Department of Water Resources the proposed stipulation and abstracts of water rights. The department will have sixty days to review the accuracy and completeness of the factual information contained in the proposed stipulation and abstracts of water rights.
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 by litigation or settlement. 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 February 21, 2013, upon the stipulated request of the parties, the Court extended the date to August 23, 2013, for the respondents to answer SRP’s motion.
In the matters involving Respondents Robinson and Chester-Campbell, L.L.C., on February 21, 2013, upon the stipulated request of the parties, the Court extended the date to May 22, 2013, for the respondents to answer.
Professor Joseph M. Feller: Professor Feller, who taught Water Law at the Sandra Day O’Connor College of Law at Arizona State University, passed away on April 8, 2013. Dean Douglas Sylvester wrote the following on behalf of the Faculty: “Our faculty, staff, students and alumni are deeply saddened by the death of Professor Joseph M. Feller, a brilliant, caring, good-humored man who died on Monday, April 8, at the age of 59. All of us at the Sandra Day O’Connor College of Law at Arizona State University extend our heartfelt condolences to Joe’s family and friends at this most difficult time. Joe cared deeply about the environment and about environmental justice, and during his 25-plus years at ASU, he trained a generation of environmental lawyers in Arizona. He taught water law and natural resources law, and often led teams of students onto public lands and waterways across Northern Arizona, adding meaning to what they’d learned in the classroom. Joe had a dazzling resume, having earned an undergraduate degree in physics and a law degree, magna cum laude, from Harvard, where he was editor of the Harvard Law Review. He also had a Ph.D. in physics from the University of California, Berkeley. But Joe’s warm personality and easy manner outshone his academic pedigree. Joe was a Faculty Fellow in the College of Law’s Center for Law, Science & Innovation, a prolific scholar and gifted practicing attorney, a renaissance man who enjoyed running, hiking, photography and cross-country skiing.”
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