Interlocutory Appeals

An interlocutory appeal asks an appellate court to decide an issue which cannot be resolved on the facts in the case, but whose resolution is essential to a final decision in the case.

On September 26, 1989, the Arizona Supreme Court adopted a Special Procedural Order Providing for Interlocutory Appeals and Certifications. The purpose of the order was to establish a procedure for early review of substantial questions in the Gila River Adjudication. Any party could petition the Arizona Supreme Court to review by interlocutory appeal any ruling of the Superior Court, and the Superior Court could certify to the Supreme Court questions deemed substantial for review.

In February 1990, several parties in the Gila River Adjudication appealed various rulings of the Maricopa County Superior Court. On June 27, 1990, the Arizona Supreme Court consolidated the petitions for interlocutory review. On December 11, 1990, the Court granted review on six issues. Each issue was argued and decided separately. The issues and their determinations are:

1. Do the procedures for filing and service of pleadings adopted by the trial court in its Pretrial Order Number 1 comport with due process under the United States and Arizona Constitutions?

   In the Matter of the Rights to the Use of the Gila River (March 19, 1992) - court held that the procedures for filing and service of pleadings adopted in Pretrial Order Number 1 comport with due process under the United States and Arizona Constitutions. The opinion is reported in 171 Ariz. 230, 830 P.2d 442 (1992).

2. Did the trial court err in adopting its 50%/90 day test for determining whether underground water is "appropriable" under Arizona Revised Statutes § 45-141?

   In re the General Adjudication of All Rights to Use Water in the Gila River System and Source (July 27, 1993) - court held that the 50%/90 day test for identifying wells presumed to be pumping subflow should not be used and remanded the matter to the Superior Court. The opinion is reported in 175 Ariz. 382, 857 P.2d 1236 (1993).

   In re the General Adjudication of All Rights to Use Water in the Gila River System and Source (September 22, 2000) - after the Superior Court held an evidentiary hearing and issued new criteria for determining subflow, court held that the subflow zone is defined as the saturated floodplain Holocene alluvium; all wells located within the lateral limits of the subflow zone, as determined by the Arizona Department of Water Resources (ADWR) are subject to the adjudication; all wells located outside the subflow zone that are pumping water from a stream or its subflow (as determined by ADWR's analysis of the well's cone of depression), are included in the adjudication; and, wells that, though pumping subflow, have a de minimis effect on the river system may be excluded from the adjudication based on rational guidelines for such an exclusion, as proposed by ADWR and adopted by the Superior Court. The opinion is reported in 198 Ariz. 330, 9 P.3d 1069 (2000), cert. denied sub nom. Phelps Dodge Corp. v. U.S., 533 U.S. 941 (2001) (reviewed in August-December 2000 and January-May 2001 Bulletin). On June 25, 2001, the U.S. Supreme Court denied a petition filed by Phelps Dodge Corporation and Arizona Public Service for a writ of certiorari (reviewed in June-August 2001 Bulletin). bbb

3. What is the appropriate standard to be applied in determining the amount of water reserved for federal lands?

   In re the General Adjudication of All Rights to Use Water in the Gila River System and Source (November 26, 2001) - court held that the purpose of a federal Indian reservation is to serve as a "permanent home and abiding place" to the people living there; the primary-secondary purpose test for quantifying a federal reserved right does not apply to Indian reservations; the practicably irrigable acreage standard is not the exclusive measure to quantify water rights on Indian lands; and, quantifying an Indian reserved right is a fact-intensive, reservation-specific inquiry that must address numerous factors, such as a tribe's master land use plans, history, culture, geography, topography, natural resources, economic base, past water use, present and projected future population, and any others deemed relevant, but proposed uses must be reasonably feasible, and the amount of water adjudicated must be tailored to the reservation's minimal need. The opinion is reported in 201 Ariz. 307, 35 P.3d 68 (2001) (reviewed in September-December 2001 Bulletin).

4. Is non-appropriable groundwater subject to federal reserved rights?

   In re the General Adjudication of All Rights to Use Water in the Gila River System and Source (November 19, 1999) - court held that federal reserved rights extend to groundwater to the extent groundwater is necessary to accomplish the purpose of a reservation. The opinion is reported in 195 Ariz. 411, 989 P.2d 739 (1999), cert. denied sub nom. Phelps Dodge Corp. v. U.S. and Salt River Valley Water Users' Assn. v. U.S., 530 U.S. 1250 (2000) (reviewed in September-December 1999, January-March 2000, and April-July 2000 Bulletin).

5. Do federal reserved rights holders enjoy greater protection from groundwater pumping than holders of state law rights?

   In re the General Adjudication of All Rights to Use Water in the Gila River System and Source (November 19, 1999) - court held that holders of federal reserved water rights enjoy greater protection from groundwater pumping than do holders of state law rights to the extent that greater protection may be necessary to maintain sufficient water to accomplish the purpose of a reservation. The opinion is reported in 195 Ariz. 411, 989 P.2d 739 (1999), cert. denied sub nom. Phelps Dodge Corp. v. U.S. and Salt River Valley Water Users' Assn. v. U.S., 530 U.S. 1250 (2000) (reviewed in September-December 1999, January-March 2000, and April-July 2000 Bulletin).

6. Must claims of conflicting water use or interference with water rights be resolved as part of the general adjudication?

   On April 2, 2002, the Arizona Supreme Court vacated its order granting this appeal and vacated the portion of the Superior Court's order entered on August 1, 1989, relating to the appeal (reviewed in January-April 2002 Bulletin).
   
   The following are interlocutory appeals arising from orders of the Superior Court.

The United States, Gila River Indian Community, and the San Carlos Apache Tribe petitioned for interlocutory review of portions of two rulings of the Superior Court related to the Globe Equity Decree of the Federal District Court of Arizona. Phelps Dodge Corporation and Salt River Project filed cross-petitions. On February 9, 2006, the Arizona Supreme Court affirmed and remanded the Superior Court's order. On May 3, 2006, the Court denied reconsideration. The opinion is reported in In re the General Adjudication of All Rights to Use Water in the Gila River System and Source, 212 Ariz. 64, 127 P.3d 882 (2006), rec'n denied, 212 Ariz. 470, 134 P.3d 375 (2006), cert. denied sub nom. San Carlos Apache Tribe v. Arizona and Phelps Dodge Corp. v. San Carlos Apache Tribe, 549 U.S. 1156 (2007). The opinion concerned appeal WC-02-0003-IR. On July 13, 2010, the Court granted the motions of the United States and the Gila River Indian Community to voluntarily dismiss appeals WC-02-0001-IR and WC-02-0002-IR. The Salt River Project moved to voluntarily dismiss its cross-petition for interlocutory review.

July 13, 2010
August 22, 2005
July 25, 2005
April 20, 2005
February 23, 2005
November 29, 2004
November 29, 2004
July 7, 2004

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This appeal arose from several petitions seeking review of the Superior Court's order dated September 28, 2005, concerning the Subflow Technical Report, San Pedro River Watershed, of the Arizona Department of Water Resources. On May 22, 2007, without an opinion the Arizona Supreme Court denied all the petitions. Chief Judge A. John Pelander of the Arizona Court of Appeals, Division Two, participated by designation in place of Justice W. Scott Bales.

Three petitions sought review of the Superior Court's orders approving the Gila River Indian Community water rights settlement. On February 19, 2010, the Arizona Supreme Court affirmed the judgment and decree of the Superior Court. The Court held that the Superior Court complied with the Supreme Court's Special Order for approving Indian water rights settlements. The opinion is reported in In re the General Adjudication of All Rights to Use Water in the Gila River System and Source, 223 Ariz. 362, 224 P.3d 178 (2010).

March 18, 2010
October 8, 2009
October 7, 2009
September 24, 2009
September 24, 2009
September 23, 2009
September 23, 2009
January 29, 2009
December 15, 2008
December 15, 2008
December 15, 2008
October 9, 2008
October 9, 2008
September 25, 2008
September 25, 2008
September 25, 2008
August 15, 2008
August 15, 2008
June 23, 2008
June 10, 2008
June 10, 2008
June 3, 2008
June 3, 2008
January 11, 2008
October 22, 2007
May 22, 2007
April 26, 2007
April 26, 2007

The City of Tucson and Farmers Investment Company sought interlocutory review and approval of the Superior Court's judgment and decree entered on July 9, 2007. Other parties were allowed to intervene. On November 30, 2007, the Arizona Supreme Court affirmed the judgment and decree of the Superior Court. The opinion is reported in In re the General Adjudication of All Rights to Use Water in the Gila River System and Source, 217 Ariz. 276, 173 P.3d 440 (2007).

November 30, 2007
November 30, 2007
November 13, 2007
October 22, 2007
October 22, 2007
October 22, 2007
September 17, 2007
August 28, 2007
August 8, 2007

The Hopi Tribe filed a petition seeking review of the Superior Court's order dated March 2, 2009, concerning the Hopi Tribe's claimed water rights to surface streams that are outside the boundaries of its reservation. On October 25, 2011, the Arizona Supreme Court denied the request for a briefing schedule and the petition for an order allowing an interlocutory appeal.

October 25, 2011
October 25, 2011
August 30, 2011
August 30, 2011

The State of Arizona filed a petition seeking review of the Superior Court's order dated October 7, 2010, concerning the existence of federal reserved water rights for State Trust Lands. On September 12, 2012, the Arizona Supreme Court affirmed the judgment of the Superior Court holding that there was no withdrawal, no reservation for a federal purpose, and no congressional intent to reserve water rights for State Trust Lands. The opinion is reported in In re the General Adjudication of All Rights to Use Water in the Gila River and Little Colorado River System and Source, 231 Ariz. 8, 289 P.3d 936 (2012).

October 5, 2012
October 5, 2012
April 26, 2012
April 26, 2012
April 18, 2012
February 28, 2012
February 2, 2012
January 12, 2012
January 12, 2012
January 5, 2012
October 31, 2011
October 25, 2011
August 30, 2011

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