Arizona General Stream Adjudication Bulletin
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This year, the Arizona Supreme Court considered petitions for interlocutory appeal filed in the In re State Trust Lands and In re Hopi Tribe Priority contested cases. The Supreme Court granted review in the former and denied review in the latter case.
Interlocutory Appeal WC-11-0001-IR (State of Arizona), In re State Trust Lands, Gila River and Little Colorado River Adjudications: The State of Arizona filed a petition seeking interlocutory review of the Superior Court's order dated October 7, 2010, concerning the existence of federal reserved water rights for State 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 The Court held that the "trust lands at issue here were not withdrawn from the public domain and reserved for a federal purpose and, therefore, as a matter of law, cannot be deemed to possess federal implied reserved water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 Superior Court's approval of the Special Master's report was limited to the findings of fact, conclusions of law, and recommendations that addressed the withdrawal and reservation of public lands.
On October 25, 2011, the Arizona Supreme Court granted the State's petition for interlocutory appeal.
A briefing schedule and a date for oral argument will be set by separate order. On October 31, 2011, the Supreme Court designated the following two issues on which it granted review:
The Court scheduled a pre-submittal conference on January 11, 2012, and ordered that parties desiring to participate in this appeal file a notice of appearance by December 22, 2011. If necessary, the Court will hold oral argument on these issues at a date and time to be set in the future.
Interlocutory Appeal WC-09-0001-IR, In re Hopi Tribe Priority: 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 the Tribe's 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. The denial of review concluded this interlocutory appeal.
The Court distributed a revised proposed special procedural order and requested additional comments from interested parties. The proposed order would apply to non-Indian water right settlement agreements and the Court's approval. The revised order was submitted following separate meetings of the Gila River Adjudication Steering Committee and the Little Colorado River Adjudication Settlement Committee. Both committees filed reports with the Court suggesting changes to the initial draft of an order.
The Cities of Avondale, Chandler, Flagstaff, Glendale, Mesa, Phoenix, and Scottsdale; Freeport-McMoRan Corporation; a group of parties self- designated the Lower Gila Water Users; Navajo Nation; Salt River Project; San Carlos Apache Tribe; State of Arizona; Yavapai-Apache Nation and Pascua Yaqui Tribe jointly; and the United States filed comments on several aspects of the proposed procedural order. One important issue is the binding effect, if any, of an approved settlement agreement on non-signing parties.
Procedural orders for Indian water rights settlements are in place. In 1991, the Arizona Supreme Court adopted a special procedural order for the approval of federal water rights settlements, including those of Indian Tribes, for the Gila River Adjudication, and in 2000 entered a similar administrative order for the Little Colorado River Adjudication. The Gila River Adjudication special procedural order was used for the approval of the recent Indian water rights settlements.
In re Hopi Tribe Priority: On September 7, 2011, the Special Master held a telephonic conference to review the status of this case which was held in abeyance while concerted settlement negotiations continued with the goal of drafting congressional legislation. After the efforts did not result in meaningful progress, the parties requested that this case return to active litigation.
Based on the positions expressed, following the conference, the Special Master vacated the suspension of prior deadlines, set new deadlines for filing responses and replies to the pending motions for summary judgment, and requested a joint report concerning a proposed schedule for discovery and briefing on the Spanish and Mexican law rights.
On October 26, 2011, the Special Master approved a proposed schedule, submitted by the Hopi Tribe, Navajo Nation, and the United States, for briefing the Spanish and Mexican law issues. These issues differ from the matters presented in the motions for summary judgment filed in March 2010, which are currently being addressed. It is anticipated that the Spanish and Mexican water right law issues will be considered separately from the issues raised in the pending motions.
Subflow Zone Map of the San Pedro River Watershed: On December 7, 2011, the Special Master filed a report with the Court recommending that all the objections referred to the Special Master be dismissed. The objectors and any claimant in the Gila River Adjudication may file an objection to the report and responses to objections. The Court may adopt, modify, wholly or partly reject or reverse, or resubmit the report to the Special Master with instructions.
On January 24-26, 2012, the Court will hold an evidentiary hearing on the objections it did not refer to the Special Master. On December 15, 2011, the Court granted a request for a subpoena to call as a witness Mr. Richard T. Burtell, who was formerly employed by the Arizona Department of Water Resources and worked on the technical report being considered in the current phase of this case.
In re Fort Huachuca: On September 7, 2011, the Court modified and adopted (nunc pro tunc) the Special Master's report. Following a telephonic conference held on December 8, 2011, the Special Master designated three issues for consideration in the next phase of this case. The issues are related to the quantification of the fort's reserved water right. A schedule was set for filing disclosure statements and conducting discovery, a process that will proceed during 2012.
In re Sands Group of Cases: On September 9, 2011, the Arizona Department of Water Resources ("ADWR") filed a report concerning implementation of the summary adjudication process for de minimis water uses that meet the criteria adopted by the Court for stockwatering, certain small stockponds, and domestic uses. The Special Master had directed ADWR to prepare a report that "describes the specific directives the department needs to proceed, outlines the tasks ADWR plans to complete, and provides a timeline for their completion."
Arizona Public Service, Bayless & Berkalew Company, Freeport-McMoRan Corporation, Salt River Project, Sands Investment Company, and the YLE Ranch submitted comments to ADWR's report. The comments requested the Special Master to defer litigation in this case until the subflow issues in the watershed are determined.
On September 22, 2011, the Special Master granted the request of Freeport-McMoRan Corporation and its in-house legal counsel to be placed on the Court approved mailing list and confirmed that Sands Investment Company is on the mailing list. In an effort to reduce the burden of distributing pleadings, the Special Master allowed parties and their attorneys to agree to use electronic mail, facsimile, and CD-ROM or DVD-ROM disks to exchange and distribute among themselves copies of documents filed with the Court. This practice will be an experiment limited to this contested case, and will be subject to modification or termination if problems are brought to the attention of the Special Master.
In re Aravaipa Canyon Wilderness Area: This case is going through an initial round of briefing seven designated legal issues. The United States, Freeport-McMoRan Corporation, and Salt River Project filed motions for summary judgment addressing the seven issues. On September 8, 2011, the Special Master heard oral argument on the motions. On November 2, 2011, the Special Master issued his determinations of the issues. He determined that the Congress in separate acts both explicitly and expressly reserved a water right for the Aravaipa Canyon Wilderness Area. A deadline of February 3, 2012, was set for submission of the next round of issues for consideration. This case is the first one in Arizona to address claimed reserved water rights for national wilderness areas.
In re Powers Garden Administrative Site: The Special Master requested a second report from the settling parties concerning the status of negotiations. Previously, the parties informed the Special Master that the settling "parties have exchanged proposals on the description of the purpose of use element of a water right for the Powers Garden Administrative Site" and expected "to conclude negotiations in the near future." The Special Master is interested in determining if this case can be resolved by mutual agreement this coming year.
In re Applications of Salt River Project for Injunctive Relief: In the matters involving respondents Henry, Kasper, Ray, and Stryker, on October 31, 2011, upon stipulation, the Court extended the date to January 17, 2012, for respondents to answer the Salt River Project's ("SRP") motion for summary judgment.
Concerning the applications involving Respondents Robinson and Chester-Campbell, L.L.C., at the request of the parties, the Court extended the date for respondents to file an answer to SRP's motion for summary judgment to January 17, 2012. These two groups of cases are being litigated concurrently as they share the same legal counsel and involve similar issues. The parties continue to explore settlement.
Link here to the calendar of proceedings.
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