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On August 23, 2018, 55 parties filed a motion with the Arizona Supreme Court requesting the issuance of an order for the review and approval of water rights settlements involving non-Indian claimants and certain non-Indian federal water rights claims. The proposed order would create a procedure for court review of the settlements of claims for water rights, for the filing of objections and responses to settlement agreements and authorize the entry of a final judgment adjudicating water rights binding on all parties to the Adjudications. Under the proposal, Arizona Department of Water Resources, the court’s expert, would prepare a report on a list of issues concerning the settlement agreement and the claimed water rights. On August 24, 2018, a request was filed with the Court for a comment period and public hearing on the proposed order or alternatively, an extended period to file a response to the proposed order. The Arizona Supreme Court set December 11, 2018 as the deadline for filing comments to the request for adoption of the proposed special procedural order.
Claims for Water Rights for Mining Uses:
In the San Pedro HSR, Arizona Department of Water Resources identified the Major Users of water in the watershed. In addition to four water irrigation districts and groups and a report on six non-Indian federal uses, it identified 13 industrial and mining uses and 43 municipal users. During the past four months, contested cases have been initiated for the largest claims for water for mining purposes. ASARCO and BHP Copper Company, f.k.a Magma Copper Company, filed claims for the use of thousands of acre feet of water that were the subject of three watershed file reports. Currently the two mining companies are in the process of preparing amended statements of claimant to reflect their current claims for water. The amended claims are due in January 2019 and will be the subject of status conferences on February 8, 2019. The three remaining watershed file reports for mining uses reported uses of one acre foot or less as of 1989.
Wells in the Gila River Watershed:
In the San Pedro watershed, proceedings continue to identify wells located outside the boundaries of the subflow zone that are or may in the future pump subflow due to their cones of depression. On May 11, 2018, the Special Master issued a draft report finding that MODFLOW was the appropriate methodology to analyze whether a well’s cone of depression at steady state will cause drawdown at the boundary of the subflow zone for purposes of establishing the court’s jurisdiction. The parties subsequently filed objections to the Special Master’s findings and on June 14, 2018 those objections were heard. On August 30, 2018, Arizona Department of Water Resources filed a Small Well Analysis Report. Currently, ADWR is developing a subflow depletion test that will be submitted by November 16, 2018, after which the parties will have an opportunity to study the report and file objections.
Motion to Designate an Issue of Broad Legal Importance Regarding Forfeiture of Pre-1919 Rights:
In 2017 the Ninth Circuit of Appeals entered a decision in United States v. Gila Valley Irr. Dist., 859 F. 3rd 789, finding, inter alia, that the Arizona Supreme Court had determined that statutory forfeiture applied to pre-1919 appropriative water rights. The Salt River Project filed a motion stating that Arizona courts have not determined whether appropriative water rights acquired prior to the enactment of the 1919 Water Code are subject to loss for non-use based upon the forfeiture provisions of the 1919 Water Code. It argued that the Arizona Supreme Court did not resolve that issue in San Carlo Apache Tribe v. Superior Court, 193 Ariz. 195, 972 P. 2d 179 (1999) and requests that the Court hear the issue as one of broad legal importance. In January and February, numerous parties filed papers joining with and opposing SRP’s motion. After oral argument on the motion, Judge Brain denied the motion to designate the issue as one or broad legal importance on the grounds that the issue should be resolved in conjunction with a specific claim or claims.
In re Hopi Reservation HSR:
During the four month period covered by this bulletin, the parties concluded additional discovery in the first phase of the proceeding, filed motions in limine and motions to strike in anticipation of trial and argued three partial motions for summary judgment. The Special Master ruled on the motions in August 2018. Trial on the past and present uses of water on the Hopi Reservation began on September 11, 2018, and is expected to continue for four months.
Link here to the calendar of proceedings.
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