supreme court affirms groundwater decision · supreme court as interlocutory issue no. 2. in 1993,...

develop different criteria for identify-ing subflow (Gila River II). In its mostrecent decision, the supreme courtindicated that this reversal wasprompted by the arbitrary time andvolume parameters adopted by thecourt in 1987.

After the 1993 remand, JudgeGoodfarb held extensive hearings inthe subflow issue, including a two-dayfield trip to the San Pedro River insoutheastern Arizona. Abandoningthe time-volume approach, Goodfarbeventually adopted a two-partapproach for identifying wells to beincluded in the adjudication.

Supreme Court Poised toHear Issue No. 3 .................2

Special Master Candidates..3

In Memorium......................3

Gila River Proceedings .......4

Little Colorado River Proceedings ........................9

Sources for Help...............11

Dow Up, NASDAQ Down..12

Fact or Fiction? .................12

Calendar............................13

In This Issue

O F F I C E O F T H E S P E C I A L M A S T E R • A u g u s t - D e c e m b e r , 2 0 0 0

continued on page 3…

stream, known as "subflow," is also governed by the prior appropriation doctrineand included in theadjudication.

The problem arisesin properly distinguish-ing subflow from ground-water which is nonappro-priable and outside theadjudication. Issue No. 2essentially asks what crite-ria will be used to identifywater users using subflow.

In 1987, Judge StanleyGoodfarb, presiding judgefor the Gila River adjudi-cation, decided that a wellwould be presumed to bepumping subflow if, aftera period of 90 days,50% or more of thepumped water came fromsurface stream depletion. Some partiesin the case, believing the subflow zonewas being defined too broadly, thenappealed Goodfarb’s decision to thesupreme court as interlocutory IssueNo. 2. In 1993, the supreme courtoverturned this decision and returnedthe question to the trial court to

Supreme Court Affirms Groundwater Decision In its second major water law

decision of the year, the ArizonaSupreme Court addressed Issue No. 2,the infamous "groundwater-surfacewater" issue, in an opinion issued onSeptember 21st (see April-July 2000Bulletin, at p. 1, for discussion ofdecision on Issues Nos. 4 & 5 concerning federal rights to groundwater). Arizona’s generalstream adjudications involve waterrights based on the prior appropriationdoctrine and federal law. Surface waterrights are governed by the priorappropriation doctrine and are includedin the adjudication. Undergroundwater closely associated with a surface

Dow Up; NASDAQ Down. See p. 12

for complete story.

The Arizona Supreme Courthas assigned Judge EddwardBallinger, Jr. as the presiding judgefor the Gila River adjudication.Judge Ballinger replaces JudgeSusan Bolton who has become afederal judge. See stories and biography on p. 4.

Gila River Judge Assigned

P a g e 2 • A r i z o n a G e n e r a l S t r e a m A d j u d i c a t i o n B u l l e t i n • A U G / D E C 2 0 0 0

Supreme Court Poised to Hear Issue No. 3

Arizona General Stream AdjudicationBulletin is published by the Office of theSpecial Master. Subscriptions are avail-able for $12 annually and a subscriptionform is located on the last page. Someprevious issues and subscriptioninformation is available on our web page :http://www.supreme. state.az.us/wm

The information contained in this Bulletin is provided for informational andscheduling purposes only, and does notconstitute a legal opinion by the SpecialMaster on matters contained herein.

Volume 8 Number 3

John E. Thorson, Special Master

Kathy Dolge, Assistant to Special Master

Office of Special Master1501 W. Washington StreetSuite 228Phoenix, Arizona 85007(602) 542-9600FAX (602) 542-9602

Design/Production: Beth HepfordPrinting: Herb Kanter

The ArizonaSupreme Court is

well on its way toconsidering anddeciding one of

the remainingi n t e r l o c u t o r y

appellate issues. IssueNo. 3, which the court

will take up next, asks whatis the appropriate standardfor quantifying water rights

for federal land r e s e r v a t i o n ssuch as Indianreservations.

On October 12, the court issued a scheduling order that might produce awritten opinion by the summer.

Issue No. 3 results from a series of"issue resolution" proceedings beforethe trial court in the late 1980s.Among the decisions then made, thetrial court determined that the "practicably irrigable acreage" (PIA)standard applies to Arizona Indianreservations. Many Gila River adjudication parties appealed this decision, arguing that the federal purposes for reserving land for Indianreservations and other federal agenciesmust be determined specifically foreach reservation. The quantificationmethod, they also say, likewise dependson the specific federal purposes for the reservation. Thesearguments will frame the core of thedebate before the supreme court.Additionally, the court asked for brief-ing on these specific issues:

• Has the purpose of all Indian reservations been determined by federal law or must these purposes beaddressed on a reservation-by-reservation basis?

• Does the PIA standard apply to allIndian reservations?

• Were there "primary" and "secondary"reasons for establishing Indian reservations? The distinction isimportant because some case lawindicates that water rights for secondary purposes should beacquired under state, rather than federal, law.

• Should these quantification standards be established, as a matterof law, in advance of trial, or mustthey be developed after fact-findingat trial?

Main opening briefs are to be filedby January 8th. Parties who believethat the main briefs do not adequatelypresent their arguments may file supplemental briefs by January 15th(filing will be timely on Jan. 16, sincethe 15th is a state holiday). Parties fil-ing opening briefs may file answeringbriefs by January 24th. Oral argumentis scheduled for February 21st (see Cal-endar).

Although Issue No. 3 originated inthe Gila River adjudication, the Indiantribes in the Little Colorado Riveradjudication are vitally interested inthe matter. The supreme court isallowing the Hopi Tribe, San JuanSouthern Paiute Tribe, and Zuni Tribeto file an amicus ("friend of the court")brief on Issue No. 3. Since the NavajoNation is a party in the Gila Riveradjudication, it may participate as aparty in the briefing.

The Arizona State Land Departmenthad asked the court to expand IssueNo. 3 to include a consideration ofwhether the federal reserved waterrights doctrine also extends to statetrust lands. These lands were grantedby the United States to Arizona forspecified purposes, such as for the support of public schools and universities. The state land departmentargues that Congress had a specific

purpose in mind when these land designations were made and in mostinstances those purposes cannot beachieved without water. While thisargument is controversial, other partiesopposed expanding Issue No. 3 sayingthat the request came too late, thetypes of state trust land are too numerous for developing a uniformstandard, and the claim should beaddressed in the first instance by thetrial court. On December 19, 2000,the court denied the motion of theArizona State Land Department.

A U G / D E C 2 0 0 0 • A r i z o n a G e n e r a l S t r e a m A d j u d i c a t i o n B u l l e t i n • P a g e 3

First, wells are to be adjudicated ifthey are located within the lateral limits of the subflow zone, defined asthe "saturated floodplain Holocene[younger] alluvium." Second, wellsoutside those lateral limits are also tobe adjudicated if their cones of depression (generally, influence ofpumping) extends to subflow waters.

The supreme court affirmed thistwo-part approach, agreeing that thesaturated Holocene alluvium is theonly stable geologic unit beneath oradjacent to most of Arizona’s streamsand rivers. While some parties arguedon appeal that Goodfarb’s revised criteria were at odds with both thecourt’s 1931 Southwest Cotton decisionand its 1993 Gila River II decision,Judge John Pelander, writing for aunanimous court, said "our variousdescriptions of subflow of Gila River IIand Southwest Cotton should not serveas a straitjacket that restricts us fromreaching in the direction of the factsand, so far as possible under thosedecisions, conforming to hydrologicreality." The court indicated, however,that wells having a small, de minimis

effect on the river system might beexempted from adjudication even ifthey pump subflow.

The supreme court emphasized thedetailed record that had been developed by the trial court and theneed to defer to those factual determinations. The court also agreedwith Judge Goodfarb that well owners,who are identified by the Departmentof Water Resources as pumping subflow,may defeat that presumptive findingby offering a preponderance of evidence otherwise. This is a lesseningof the "clear and convincing evidence"standard that the court had discussedin its 1993 holding. The court alsoindicated that its subflow rule did notinvolve an unconstitutional taking ofprivate property or consist of improperlegislating by a court.

Judge Pelander, Judge Noel Fidel,and Judge William Druke were sittingon the case, by designation, as substitutes for Justices Jones, Martone,and McGregor who had recused them-selves from the issue.

Arizona Public Service Co., PhelpsDodge Corp., and ASARCO

Supreme Court Affirms Groundwater Decision

Incorporated filed motions to reconsider this decision. The SaltRiver Project filed a response. OnDecember 19, 2000, the court deniedthe motions.

Attorney Kevin Tehan, long activein the Arizona water adjudications, died on September

29, 2000. Tehan was a member of theScottsdale law firm of Sparks, Tehan &Ryley, and represented the San CarlosApache Tribe and other tribal groups.Tehan received his law degree fromArizona State University and practicedin Arizona from 1977. Among manycivic activities, he served as president ofthe Scottsdale Bar Association. He willbe remembered for his faithful advocacyin behalf of his tribal clients.

In Memoriam

The process for selecting a newSpecial Master for Arizona’s generalstream adjudication continues with thesuperior court judges who will makethe selection asking for comments onthe candidates who are being considered. On October 20th, thejudges in both adjudications asked forcomment by November 17th on thesecandidates:

• Aaron R. Clay, Referee, ColoradoWater Court;

• James H. Davenport, Chief, WaterDivision, Nevada’s Colorado RiverCommission;

• Terrence A. Dolan, Special Master,Idaho’s Snake River Adjudication;

• Joseph M. Feller, Professor of Law,Arizona State University; and

• George A. Schade, Jr., AdministrativeLaw Judge for the State ofArizona.

Special MasterCandidates

continued from page 1…


Bolton Appointed to Federal Court

Judge Susan Bolton, who has servedsince 1994 as presiding judge for theGila River adjudication, has been confirmed a U.S. District Court judgefor Arizona. While the U.S. Senateratified her nomination shortly afterLabor Day, Bolton took the oath ofoffice for her new position on October20th. The Bulletin extends its bestwishes to Judge Bolton as she undertakes this prestigious judgeship.

New Gila River AdjudicationJudge Selected

On December 19th, the ArizonaSupreme Court appointed JudgeEddward Ballinger, Jr. to replace JudgeBolton as presiding judge for the GilaRiver adjudication.

Eddward P. Ballinger, Jr. assumedhis duties as a Superior Court judge inMay 1998. He is the Criminal Department’s Associate PresidingJudge.

He received his law degrees fromOhio State University (J.D. 1979) andNew York University (LL.M 1981).Prior to his appointment to the benchhe was a partner in the law firm ofBrown & Bain, where his practicefocused on civil litigation and business reorganizations.

Judge Ballinger is committed to theidea that the legal profession needs to

be actively involved in community andeducational activities. He is a pastpresident and current member of theBoard of Directors of the Arizona Kidney Foundation, assisting the AKFin providing care and support to thosein Arizona that suffer from kidney failure and related illnesses. He servedas a board member for Project Laws, anot-for-profit organization committedto helping disadvantaged and minorityyouth find summer jobs in professionalfirms and corporations.

Judge Ballinger also served in theMaricopa County Bar Association’sContinuing Legal Education Committeeand during the past 15 years has regularly served as a lecturer speakingon topics relating to trial practice techniques, lender liability, the restructuring of troubled businesses andemployment related issues.

He has authored numerous worksdealing with issues ranging from analysisof federal statutes such as the ForeignCorrupt Practices Act to methods ofavoiding litigation. His interest in lessexpensive alternatives to litigation ledhim to become involved with theAmerican Arbitration Association,where he served as a member of thebusiness advisory committee. In hisspare time Judge Ballinger enjoys eating (a lot), exercising (a little),reading biographies of great Americansand trying to fix the damage he does tohis personal computer.

Judge Ballinger was being considered along with four other Maricopa County Superior CourtJudges: Daniel A. Barker, Norman J.Davis, Eileen Willett, and Michael A.Yarnell. In an earlier order solicitingcomments on five candidates, thesupreme court indicated that once thenew Gila River adjudication judge isappointed, the judge cannot be

disqualified by a party except for cause.In other civil cases, a party can requesta "change of judge" without specifyinga reason. With 27,000 parties in thisadjudication, such a preemptory challenge for each party would beunworkable.

Draft Settlement Legislation

Arizona’s congressional delegation,spearheaded by Senator Jon Kyl, introduced the Arizona Water Settlements Act of 2000 (S. 3231) onOctober 24th. The legislation outlinesan approach for settling Indian waterright claims in the Gila River adjudication, as well as resolving issuesconcerning the Central Arizona Project. The delegation described thebill as a "work in progress" but agreedto introduce it during the last weeks ofthe 106th Congress in order to securecomment from outgoing Secretary ofthe Interior Bruce Babbitt and otherparties. A revised bill is expected to beintroduced during the first months ofthe 107th Congress.

The proposed legislation is dividedinto five separate titles. Title I is the"Central Arizona Project AdjustmentAct" and incorporates the settlementreached between the federalgovernment and the Central ArizonaWater Conservation District, operatorof CAP, for repayment of project costs.Title I also reallocates almost 300,000acre-feet of CAP "non-Indian agricultural water," making almost200,000 acre-feet available for settlements with the Gila River IndianCommunity and other Arizona Indian tribes.

Title II of the bill is the "Gila RiverIndian Community Water Rights Settlement Act." The more detailed(and still evolving) settlement agreement between the Gila River

Gila River Proceedings


Indian Community and other majorwater users is approved. A total of155,400 acre-feet of CAP water is reallocated to the Community from avariety of sources. Also, $200 millionis to be deposited in a "Gila River Indian Community Settlement Development Trust Fund" to be usedfor the development of irrigation worksand other authorized purposes. Also,$7 million is provided to the InteriorDepartment to reduce by 2,000 acresthe land that may be irrigated, underthe Globe Equity Decree (see April-July2000 Bulletin at p. 1), upstream fromthe San Carlos Apache Indian Reservation. Once passed, the legislation would waive any claims theUnited States, Indian Community, or Indian allottees might have against other water users in the GilaRiver adjudication.

Title III of the bill makes amendments to the Southern ArizonaWater Rights Settlement Act of 1982,which benefits the Tohono O’odhamNation. Title IV has been left blank,pending the completion of a settlement of the water right claims ofthe San Carlos Apache Tribe. Title Vcontains technical provisions.

In their written explanation of thebill, the state’s congressional delegation claims that the legislationwould result in a "final settlement ofall claims to waters of the Gila Riverand its tributaries." While passage ofthis legislation would greatly advance

the Gila River adjudica-tion, this statement issomewhat misleadingsince non-Indian claimswould still have to beresolved, even after asettlement of tribalclaims.

Settlement Efforts Ongoing

Several events a p p a r e n t l yslowed GilaRiver negotia-tions during the fall.Many of the majorparties were assistingSenator Kyl inpreparing the drafts e t t l e m e n t b i l l.D e p u t y I n t e r i o rD e p a r t m e n t Secretary DavidHayes, who hasb e e n a c t i v e l yinvolved in thesediscussions, was inEurope as a member of theA m e r i c a n delegation attendinga n i n t e r n a t i o n a l meeting on global climatewarming (Kyoto Accords). TheArizona Supreme Court’s recent decisions on groundwater have alsocaused some parties to reassess theirnegotiating positions. See lead articleand April-July 2000 Bulletin at p. 1. Asa result of recent meetings, some of theparties are working on water budgetsfor major users in the upper Gila. Settlement discussions convened byJudge Michael Nelson have recentlybeen held involving major upper GilaRiver claimants. These negotiating sessions are expected to continue on amonthly basis.

Master Issues Gila River IndianReservation Report

On December 28th, the SpecialMaster issued his second report onmotions affecting the water rightclaims of the Gila River Indian Community (and the United States in

its behalf). The motions were filed infall 1999 and were referred to the Master by the court in July 2000.These motions are part of an overallcase management strategy that seeks todetermine the Community’s waterright claims in a step-by-step process.Earlier, the Special Master issued areport addressing the preclusive effectof the federal Globe Equity Decree onthe reservation’s water rights (seeApril-July 2000 Bulletin at p. 1).

The recently decided motionsasserted that certain contracts, stateand federal court proceedings, and proceedings under the federal IndianClaims Commission Act precluded orlimited water right claims for the Gila

Gila River Proceedings (continued)

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River Indian Reservation. All fourmotions were filed by the Salt RiverProject (SRP) and the City of Tempe,sometimes joined by other entitiessuch as the Buckeye Irrigation Districtand the Arlington Canal Co.

The Master has recommended asfollows:

• Summary judgment should bedenied on the argument thatthe Community waived anywater rights, beyond those adjudicated in the Globe EquityDecree, by accepting an award for the taking of the Community’s aboriginal land bythe federal government.

• Summary judgment should bedenied on the argument thatthe federal Haggard Decree(1903) on the Salt River or the1936 Maricopa Contract(addressing some of the rightsunder the decree) precludes anyadditional reservation waterright claims in the Gila Riveradjudication.

• Summary judgment should be granted on the argument that proceedings under the Indian ClaimsCommission Act conclusively determined that the federal government did not reserve anywater in the Salt River system forthe reservation, beyond the rights forthe 1,500-acre Maricopa Colonynear the confluence of the Salt andGila rivers.

• Summary judgment should be granted on the argument that the1907 Sacaton Agreement preventsthe Indian Community from asserting an interest in or right to useSRP’s dams, reservoirs, canals, or other works.

• Summary judgment should be denied

on the argument that the 1945 agree-ments between the Buckeye andArlington entities and the United States, as interpreted in proceedings under the Indian ClaimsCommission Act, now limit the Community’s claims.

Priorities for Gila River Adjudicat ion

One of Judge Susan Bolton’s adjudication-related acts before leavingthe state bench (see p.4) was toannounce a list of litigation prioritiesfor the Gila River adjudication. JudgeBolton had released a tentative list inJune and asked for comment from theparties. The September 28th order is arevision of the earlier plan.

1. Gila River Indian CommunityThe court’s first priority is to finalize

and issue the final hydrographic surveyreport for the Gila River Indian Reservation (Contested Case No. W1-203). While preliminary

activities, including document disclosure and the filing of motions forsummary judgment, have been underway in Contested Case No. W1-203 for several years, the HSR hasbeen delayed for a variety of reasons--most recentlybecause the Arizona Department of

Water Resources (ADWR) didnot have adequate informationabout allottees on the reservationin order to give these individualsnotice of the HSR. The UnitedStates had agreed to provide thisinformation to the departmentand recently submitted namesand addresses for 6,700 allottees.The department now anticipatesthat the final HSR for the GilaRiver Indian Reservation will befiled approximately July 1, 2001.The filing of the HSR will beaccompanied by notice to GilaRiver adjudication claimantswho will then have 180 days toobject to the HSR.

2. Adjudication of Small Uses

Judge Bolton indicated thatthe second priority should be to

finalize the method for quantifyingsmall uses in the adjudication. TheSpecial Master held hearings andissued a report on the quantification ofdomestic uses, stockponds, and stock-water uses in the San Pedro watershed,but court review of that report waspostponed by 1995 legislation that alsoaddressed the quantification of theseso-called de minimis uses. Since theselegislative provisions were ultimatelydeclared unconstitutional by the statesupreme court, the adjudication courtonce again needs to review the Mas-ter’s report and finalize a method for adjudicating these small uses. JudgeBolton ordered that objections to theMaster’s report on small uses in the



San Pedro be filed by November 9th.The due date for replies to responses tothe objections has been extended toJanuary 12, 2001. The new adjudicationjudge will announce oral arguments on the objections.

3. Other Gila River Lit igat ion

Judge Bolton also indicatedher desire to commence proceedings concerning the SanCarlos Apache Indian Reservationand the Upper Gila River watershed. The San CarlosApache Tribe’s Salt River waterrights were the subject of a successful settlement approved in1999, but certain of the Tribe’sGila River water rights still needto be determined. Also, many ofthe water uses of the San CarlosTribe and other upper Gila Riverwater users are intertwined in thefederal Globe Equity Decree (seeApril-July Bulletin at p. 1).

In response to Judge Bolton’sinterest in commencing proceed-ings in this area, ADWR reportedthat it would need one and one-half to two years to complete apreliminary HSR for the remainingportions of the San Carlos Reservationand perhaps another year to completethe preliminary HSR for the UpperGila River. The department also counseled against combining thesetwo HSRs.

Saguaro National Monument

One of the original cases in the SanPedro River watershed involved thewater right claims of Saguaro NationalMonument (Rincon Mountain Unit),Contested Case No. W1-11-2782.This federally owned reservation islocated east of Tucson within theCoronado National Forest. Before litigation in the San Pedro was stayed

in 1995, the United States and otherparties objecting to the water right claims reached an agreementconcerning the monument’s rights.Once the litigation stay was removed,the Master submitted this settlementto the court in a report that allowedother water right claimants to object to

the settlement. Since no objections tothe settlement had been filed by thedeadline of December 20th, a partialdecree adjudicating the monument’swater rights (for the Rincon MountainUnit) will be entered by the court.

Fort Huachuca (Contested CaseNo. W1-11-605)

Fort Huachuca is a U.S. Armyinstallation near Sierra Vista in southeastern Arizona. The fort’s waterright claims comprised another contested case organized before the1995 litigation stay. In her September28th minute entry (see above), JudgeBolton indicated that Fort Huachucawas another San Pedro contested case

that could be resumed. The Masterannounced a December pretrial conference to discuss the status of thecase, including what steps ADWRmust undertake to update the watershed file report (WFR) describingthe water rights of the army installation.At the request of the United States,

however, the December conference was cancelled. It willbe rescheduled after the first ofthe year by the court or Master.

Gila River Indian ReservationProceedings Delayed

The trial to establish the purposes of the Gila River IndianReservation, Contested Case No.W1-203, had been scheduled tobegin on May 7, 2001. That trialwas to be one phase in the progressive determination of thereservation’s water rights (seeApril-July 2000 Bulletin at p. 3).Once the Arizona SupremeCourt announced its briefing andoral argument schedule for IssueNo. 3 concerning the appropri-ate standard for determining theamount of water for Indian land

(see lead article, p. 1), many of the liti-gants in W1-203 concluded that theMay trial would be greatly influencedby the supreme court’s resolution ofIssue No. 3. Additionally, many of theattorneys believed that the existingschedule for W1-203 would interferewith their preparations of briefs and fororal argument before the supremecourt. Consequently, they asked theSpecial Master for a stay of W1-203proceedings until the supreme courtdecides Issue No. 3.

After a hearing conducted by telephone conference call, the Masteragreed to a postponement of case proceedings. Arguments on evidence




and other preliminary legal issues,scheduled for November 15th and16th, were cancelled. Under a newschedule proposed by some of the parties and agreed to by the Master, a status conference to assessthe impact of the supreme court’s resolution of Issue No. 3 will be heldwithin 60 days of the decision.At that time, the Master willissue a more detailed scheduleleading up to trial in the case.Depending on what the supremecourt does, a trial on reservationpurposes may not be necessary orthe number of subsidiary issuesmay be reduced.

Additional Discovery in W1-203

Thousands of additional discovery documents were submitted to the court before thelitigation stay took effect. Thesedocuments were the subject of adiscovery dispute between theSalt River Project and the GilaRiver Indian Community thatwas resolved in SRP’s favor bythe Special Master. The Masterrequired the Community to make itsrecords concerning proceedings beforethe Indian Claims Commission available to SRP’s experts and attor-neys. These records include pleadingsand evidence used in 50 years of litiga-tion between the Community and theUnited States. The Salt River Projectidentified approximately 1,300 docu-ments, comprising 18,600 pages, sub-mitted to the court. This brings thetotal number of documents submittedto the court by all parties to twentythousand (170,000 pages). Informationabout obtaining copies of all or a portion of the most recently submitted documents may be obtained from the

Office of the Special Master.

Another Gila Case Continued

Upon the request of the PhelpsDodge Corp., the Master has extendedsome of the deadlines in Case No. W1-206, In re the Preclusive Effect of theGlobe Equity Decree on Specified Parties.

The somewhat unusual contested casewas suggested by some of the GilaRiver adjudication parties to concludethe examination of the impact of thefederal court Globe Equity Decree onthe Gila River adjudication (seeJanuary-March 2000 Bulletin at p. 4).During 2000, the Master consideredand determined motions by some ofthe parties arguing that Globe Equitylimited the water rights that could beclaimed by or on behalf of the GilaRiver Indian Reservation in this adjudication. In a report to the courtfiled on June 30, the Master agreedthat Globe Equity did have somepreclusive effect (see April-July 2000

Bulletin at p. 1).

Case No. W1-206 is an effort toexamine the possible preclusive effectof Globe Equity on other parties in theGila River adjudication including theSan Carlos Indian Reservation andmany upper Gila River irrigators.Motions concerning the

preclusive effect of Globe Equityon these other parties were tohave been filed on December8th.

Phelps Dodge sought toextend this date principally forthe benefit of the San CarlosIndian Tribe. Having lost one ofits attorneys (see In Memoriam,p. 3) and facing litigation deadlines in many cases, theTribe’s attorneys had less time toparticipate in promising settlement discussions concerningthe upper Gila River. PhelpsDodge argued that an extensionof motion deadlines in W1-206would allow for more productivediscussions among the partiesseeking settlement.

Under the newly announced schedule, motions concerning thepreclusive effect of Globe Equity mustbe filed on March 8th. The Master seta status conference on February 20thto discuss whether the posture of set-tlement efforts by then justifies furthermodification of the schedule. See Cal-endar, p. 13, for a complete schedulefor motions, responses, and replies inthis contested case.

Initial and supplemental disclosuresin Case No. W1-206 have producednearly 2,100 documents totaling16,500 pages.


The most recent status conferenceconcerning the Little Colorado Riveradjudication was held in St. Johns onAugust 10th. Judge Edward Dawson,assigned judge for the adjudication, listened to numerous reports on progress in settling the adjudicationand areas where litigation may be necessary.

Judge Dawson discussed a letter hehad received from Arizona’s U.S. Senator Jon Kyl. Kyl had writtenabout the importance of settlement,the progress that had been made infashioning a bill for Congress, and theneed for more time. Judge Dawsonindicated that he would honor SenatorKyl’s request and allow the parties anadditional congressional session tosecure authorization and funding forthe settlement.

The court also heard reports on theresolution of water right claims madeby the National Park Service. TheUnited States has been negotiatingindividually with parties directlyaffected by these rights. The federalgovernment’s attorney distributedabstracts of these water rights andasked for comment by other partiesbefore he formally requests federal government approval of the settledrights. Questions were raised abouthow these abstracts would be considered by the court. Several parties indicated that the statesupreme court’s adoption of a settlement approval rule (see below)might answer these questions.

The Arizona Department of WaterResources also reported on the schedulenecessary to complete hydrographicsurvey reports for Indian lands in theevent settlement efforts fail. The preliminary HSR for these lands wasprepared in 1994. The departmentnow recommends that separate, final

HSRs be prepared forthe Navajo Reservation(including claimsby the San JuanS o u t h e r nPaiute), Zunilands, and HopiR e s e r v a t i o n - -starting with theHopi claims first.These reportswould be expandedto provide a factual foundationfor determiningthe "practicablyi r r i g a b l e "acreage of eachr e s e r v a t i o n .Each reportwould takealmost two years tocomplete. After receiving thisreport, Judge Dawson allowed the par-ties to file written comments on ADWR’s proposal (seebelow).

Another item considered duringthe status conference was the WhiteMountain Apache Tribe’s motion todismiss (see below). The next statusconference was set for February 22,2001 (see Calendar).

Settlement Efforts Advance

Settlement efforts in the Little Colorado River adjudication are progressing, although several factorsare likely to postpone the date for settlement legislation to be presentedto Congress. As the result of the election, many key federal officials areleaving government and it will be several months until their successorsare in place. Congress itself will likelyrequire more time to get organized andstaffed for the next session. While Senator Jon Kyl was successful in

obtaining a $1 million appropriation tofund a technical study of the settlement, it is unlikely that a contractor will be hired by the U.S.Bureau of Reclamation before July.Once work commences, the study willrequire at least a year to complete.Also, the anticipated sale of theMohave power plant by Southern California Edison, one of the negotiating parties, to an eastern firmhas also been delayed, raising questionsabout which corporate entity will participate in the settlement.

Negotiations concerning Zuni triballands in Arizona, however, may beclose to completion. A January negotiating session is scheduled tofinalize an overall agreement thatincludes proposed legislation, a proposed court order, and individual

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P a g e 1 0 • A r i z o n a G e n e r a l S t r e a m A d j u d i c a t i o n B u l l e t i n • A U G / D E C 2 0 0 0

agreements with some of the settlingparties. Progress has been made on theancillary issue of whether certain Zunilands will be taken into trust status bythe United States; this issue has apparently been narrowed to the question of how much acreage wouldgo into trust. With success on theseremaining issues, a separate ZuniTribe settlement bill may beintroduced into Congress inearly 2001.

The settlement of the waterright claims of several federalland management agencies isalso showing promise. TheNational Park Service, Bureau ofLand Management, and othermajor parties are finalizing agreements and water rightabstracts that may be presentedto the court at the February statusconference. While these agreements would bind only thesigning parties, a more completesettlement agreement is likely tobe submitted to the adjudicationcourt by mid-year. This agreement is expected to be considered under the newsupreme court order for the judicialconsideration of water right settle-ments for federal agencies (see below).If approved, the settlement and waterright abstracts would bind all parties tothe Little Colorado River adjudication.

White Mountain Apache TribeWithdraws Motion

The White Mountain ApacheTribe has never filed claims in the Little Colorado River adjudication,although the United States has doneso in its behalf. The Tribe has longbelieved that state court does not havejurisdiction over the Tribe or its waterrights. In July 1996, the Tribe made aspecial appearance in the adjudication

to file a motion to dismiss the entireadjudication. The grounds urged bythe Tribe were that the adjudicationhad failed to include the transbasinCoconino and Pinetop-Lakesideaquifers which the Tribe believes provide the base flow for the LittleColorado River and the Salt River

system. Without the inclusion of thisgroundwater and the persons who usethe resource, the Tribe believes theadjudication does not satisfy the federalMcCarran Amendment (see August1996 Bulletin at p. 1).

When the motion to dismiss wasfiled, Judge Allen Minker, thenpresiding judge for the adjudication,

deferred consideration of the pleadingsince settlement discussions wereactive. At the most recent status conference (see above), the Tribe andseveral parties urged the court to takeup the motion, and Judge Dawsonreferred the motion to the SpecialMaster for an initial determination.

Since the August status conference,the United States has amended itsclaims on behalf of the White Mountain Reservation. The amendedclaims assert aboriginal and federalreserved water rights, with a timeimmemorial priority date, to the transbasin Coconino and Pinetop-

Lakeside aquifers. The Tribebelieves that these amendedclaims address its concerns and,for the moment, satisfy theMcCarran Amendment. Thus,on October 11th, the Tribe withdrew its motion to dismiss.The Tribe cautioned, however,that it had identified 600 personswho pump water from theseaquifers and urged the court tobring these users into the adjudication in order to ensure the comprehensiveness of the proceeding.

Supreme Court Adopts Settlement Order

In 1991, the Arizona SupremeCourt issued a "special proceduralorder" specifying the procedureand criteria the Gila River

adjudication trial court must use toconsider settlements involving thewater rights for Indian tribes and otherfederal land reservations. Such criteriaand procedures are necessary sincethese settlements are usually negotiatedamong the major water users and otherparties must have an opportunity toobject. Since 1991, four settlementshave been approved in the Gila Riveradjudication.

The Little Colorado River adjudication has not had a similarorder. With settlement discussions sufficiently advanced, Arizona PublicService Co. and other parties petitioned the supreme court in February to promulgate such an order

Little Colorado River Proceedings (continued)

• the settlement would cause materialinjury to the objector’s water rights;

• a statute authorizing the settlementis unconstitutional; or

• the water rights established in thesettlement "are not fair, adequate,reasonable and consistent withapplicable law, considering all of thecircumstances surrounding the set-tlement and all of the considerationprovided under the settlement . . . ."

The last criterion marks the major difference with the earlier GilaRiver adjudication procedure. Thesupreme court’s "special proceduralorder" for the Gila case allows the dis-approval of a settlement if the waterrights thereby established would be"more extensive" than the Indian tribeor federal agency would have been able

to prove at trial.

for the Little Colorado River adjudication (see April-July 2000 Bulletin at p. 6). The proposed order wascirculated for comment and severalsubstantive suggestions were received.

On September 27th, the supremecourt finalized the "administrativeorder" to guide settlement approvalprocesses in the Little Colorado Rivercase. If a settlement involving Indianreservations or other federal lands isapproved by Congress (or the appropriate federal agency), and thesettlement must be approved by theadjudication court, the settling partiespetition the court for "special proceedings" to consider the settlement.Notice of the special proceedings andthe settlement is provided to allclaimants in the adjudication. Thecourt may refer initial proceedings tothe Special Master, and the courtmay order ADWR to prepare atechnical assessment of thesettlement. Other parties mayfile objections to the settlement within 45 days,and these objections must beheard and resolved by theMaster or the court beforethe settlement can beapproved.

The new order modi-fies the grounds, adoptedearlier for the Gila case,for objecting to a settlement. Under thenew order, a water usercan successfully objectto a settlement if theuser demonstrates that

• the approval processwas not properlyinitiated;

A U G / D E C 2 0 0 0 • A r i z o n a G e n e r a l S t r e a m A d j u d i c a t i o n B u l l e t i n • P a g e 1 1

Little Colorado River Proceedings(continued) If you have questions

in a particular area, here are the proper people to contact.

Sources for Help

Access the Arizona JudicialDepartment web page athttp://www.supreme.state.az.us and theArizona General Stream Adjudication web pagehttp://www.supreme.state.az.wm

Adjudications, HSRs, WFRs,Discovery

Lisa JannuschAdjudications DivisionAZ Dept. of Water Resources500 N. 3rd StreetPhoenix, AZ 85004(602) 417-2442(Toll free in AZ) 1-800-352-8488

Scheduling, ProcedureKathy DolgeOffice of the Special MasterArizona State Courts Building1501 W. Washington, Suite 228Phoenix, AZ 85007(602) 542-9600 TDD (602) 542-9545

PleadingsGila River

Oscar GarciaClerk’s OfficeMaricopa County Superior CourtRecords Management Center3345 W. Durango St.Phoenix, AZ 85009(602) 506-4139 FAX (602) 506-4516

Little Colorado RiverClerk’s OfficeApache County Superior CourtApache County CourthouseP.O. Box 365St. Johns, AZ 85936(520) 337-4364FAX (520) 337-2771

P a g e 1 2 • A r i z o n a G e n e r a l S t r e a m A d j u d i c a t i o n B u l l e t i n • A U G / D E C 2 0 0 0

At year’s end, many eyes are following the daily gyrations in thestock market, as well as the plans ofthe incoming Bush administration."Old economy" companies seem to bemoving ahead steadily while "neweconomy" dot.coms continue downward. Seasoned retailers ("oldeconomy" mail-order houses, forinstance) persevere while bold start-upsof the "new economy" fail or struggle.

The adage, "better to be old, wise,and crafty rather than young, energetic,and over-capitalized," does have a niceappeal for those of us in our middleyears who grew up thinking the 1955T-Bird is the best car Detroit ever puton the road.

The "old-new economy" dichotomyhas its relevance to the water law fieldalthough it is sometimes difficult sortingthe artifacts of the "old economy" fromthe innovations of the "new." Aregeneral stream adjudications a rathertarnished relic of the 19th centuryWest or of 1980s "go-go" optimism? Isthe recent emphasis on comprehensivesettlements a new, less litigiousapproach to water management or simply a return to earlier western pragmatism?

As the millennium really turns, Ifind there is no simple way to characterize our profession. We reachback to the 1800s for our basic doctrine--prior appropriation—but we apply itin ways that Elwood Mead would hardlyrecognize. We tout the new emphasison cooperative settlements and watershed management, forgettingthat the pioneers of cooperative wateruse were Indian communities and irrigation-based colonies, like Anaheim and Greeley, and John WesleyPowell articulated watershed management 110 years ago.

Yet there is something new andhopefully enduring in western water

law: the convergence of many long-separated streams. The prior appropriation doctrine is convergingwith the federal reserved rights doctrine,as well as environmental law. Watermanagement institutions are adapting—or new entities being formed—toimprove the mesh between local, tribal,regional and national concerns. Likethe mail order house of the old economythat discovers it can sell well on theinternet, perhaps we can take enoughof the old and new to render a lastingimprovement for the western region.Perhaps, as Wallace Stegner said sowell, may we finally create a society tomatch our magnificent landscape.

A decade goes so fast. My thanksto the fine judges with whom I’veworked (Robert Corcoran, StanleyGoodfarb, Allen Minker, SusanBolton, Edward Dawson), the excellent court staff who served so well(Maricopa County: Oscar Garcia,Alma Cano, Kim Myrick, Terri Pavia,Carol Schreiber, Marian Catt, BarbaraCrawford, Lindomar Bonfim; ApacheCounty: Carolyn Williams Morrow,Sue Hall and her staff, Sheryl TaylorBarker), the Arizona Department ofWater Resources whose technical workis among the best in the nation, and the many divisions of the Administrative Office of the Courts

that supported my office in countlessways. My special thanks to KathyDolge, Ramsey Kropf, and the manyinterns who brightened our work. Special thanks also to Judge Mike Nel-son who has worked exhaustively toresolve problems that are as old as thestate itself.

And to the many lawyers, you’vetaught me so much. I wish I couldhave known you longer and better.I’m confident we’ll all continue towork to achieve the mayordomo’s finaldesire: to divide the waters fairly andkeep the community’s peace preserved.—John E. Thorson

Dow Up, NASDAQ Down

While meeting with Arizonawater attorneys, Secretary of theInterior Bruce Babbitt, in encour-aging Indian water rights settle-ments, is reported to have said:"We should be able to resolve thesecases. This government has beenable to negotiate treaties before.

Fact or Fiction? Or Does It Matter?Look what George Mitchell (for-mer majority leader, U.S. Senate)did in Northern Ireland." A jadedArizona water attorney is reportedto have responded, "But Mr. Secre-tary, that was religion. This iswater!"

A U G / D E C 2 0 0 0 • A r i z o n a G e n e r a l S t r e a m A d j u d i c a t i o n B u l l e t i n • P a g e 1 3

Jan. 8, 2001Supreme Court InterlocutoryReview Issue No. 3

Due: Opening briefs(see order Oct. 12, 2000)

Jan. 12, 2001Case No. W1-11-19 (GR)In re Sands Investment Co.(Group 1 Cases)

Due: Replies to responses to exceptions to Special Master’sReport (Nov. 14, 1994, modified Feb. 23, 1995)

(see minute entry Dec. 7, 2000)

Jan. 15, 2001Martin Luther King Holiday –State offices closed


Due: Supplemental briefs and LCR Tribes’ amicus brief

(see orders Oct. 12 & Nov. 27, 2000)


Due: Answering briefs(see order Oct. 12, 2000)

Feb. 9, 2001Case No. W1-203 (GR)In re the Water Rights of theGila River Indian Community

Due: Objections to the Second Report of the Special Master(Dec. 28, 2000)

Feb. 14-16, 2001ABA Water Law ConferenceSan Diego (Call 312/988-5724 for information)

Feb. 19, 2001Presidents’ Day – State officesclosed

Feb. 20, 2001 – 1:30 p.m.Case No. W1-206 (GR) In re the Preclusive Effect of theGlobe Equity No. 59 Decree onSpecified Parties

Status ConferenceASCB Conference Room 230

(see minute entry Nov. 10, 2000)

Feb. 21, 2001 – 1:30 p.m.Supreme Court InterlocutoryReview Issue No. 3

Oral ArgumentASCB Supreme Court (4thFloor)

(see order Oct. 12, 2000)

Feb. 22, 2001 – 1:00 p.m.Case No. 6417 (LCR)

Status Conference beforeJudge Dawson

Apache County Courthouse,St. Johns

(see minute entry Aug. 10, 2000)

Mar. 2, 2001Case No. W1-203 (GR) In re the Water Rights of theGila River Indian Community

Due: Responses to objections to the Second Report of the Special Master (Dec. 28, 2000)

Mar. 8, 2001Case No. W1-206 (GR)In re the Preclusive Effect of theGlobe Equity No. 59 Decree onSpecified Parties

Due: Motions for summary judgment


Apr. 19, 2001Case No. W1-206 (GR)In re the Preclusive Effect of theGlobe Equity No. 59 Decree onSpecified Parties

Due: Responses to motions for summary judgment


May 2, 2001Case No. W1-206 (GR)In re the Preclusive Effect of theGlobe Equity No. 59 Decree onSpecified Parties

Due: Replies, motions for summary judgment


C A L E N D A R

Abbreviations: GR = Gila River adjudication

LCR = Little Colorado River adjudicationASCB = Arizona State Courts Building, 1501 W. Washington, Phoenix, AZ

Office of the Special MasterArizona General Stream AdjudicationArizona State Courts Building1501 W. Washington, Suite 228Phoenix, Arizona 85007

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