IN RE GENERAL ADJUDICATION OF ALL RIGHTS

• Citation: 35 P.3d 68,201 Ariz. 307
• Parties: In re the GENERAL ADJUDICATION OF All RIGHTS TO USE WATER IN the GILA RIVER SYSTEM AND SOURCE.
• Decision Date: 26 November 2001
• Court: Supreme Court of Arizona

35 P.3d 68

201 Ariz. 307

In re the GENERAL ADJUDICATION OF All RIGHTS TO USE WATER IN the GILA RIVER SYSTEM AND SOURCE.

Nos. WC-90-0001-IR, WC-90-0004-IR, WC-90-0007-IR, WC-90-0002-IR, WC-90-0005-IR, WC-79-0001, WC-90-0003-IR, WC-90-0006-IR, WC-79-0002-IR.

Supreme Court of Arizona, En Banc.

November 26, 2001.

Salmon, Lewis & Weldon, P.L.C., by M. Byron Lewis, John B. Weldon, Jr., Stephen E. Crofton, Mark A. McGinnis, Riney B. Salmon, II, Phoenix, Attorneys for Salt River Project Agric. Improvement and Power Dist., Salt River Valley Water Users' Ass'n, San Carlos Irrigation and Drainage Dist., and Maricopa County Municipal Water Conservation Dist. No. 1.

Sparks, Tehan & Ryley, P.C., by Joe P. Sparks, John H. Ryley, Scottsdale, Attorneys for San Carlos Apache Tribe, Tonto Apache Tribe, and Yavapai Apache Nation.

Gila River Indian Community, by Rodney B. Lewis, Chandler, Attorney for the Gila River Indian Community.

Navajo Nation Department of Justice, by Stanley M. Pollack, Window Rock, Greene, Meyer & McElroy, P.C., by Scott B. McElroy, Alice E. Walker, Boulder, CO, Attorneys for the Navajo Nation.

Janet Napolitano, Arizona Attorney General, by Graham M. Clark, Jr., Mary Mangotich Grier, Phoenix, Attorneys for State of Arizona.

United States Department of Justice, by John Cruden, Andrew C. Mergen, Katherine J. Barton, Patrick Barry, Lois Schiffer, Washington, DC, Attorneys for United States.

Moyes Storey, by Lee A. Storey, Steven L. Wene, Phoenix, Attorneys for City of Safford.

Jennele Morris O'Hair, Vail, Attorneys for Cities of Sierra Vista and Benson.

Ulrich & Anger, P.C., by William H. Anger, Paul G. Ulrich, Phoenix, Attorneys for the Cities of Chandler, Mesa, Glendale, and Scottsdale.

Chandler City Attorney's Office, by Cynthia J. Haglin, Chandler, Attorneys for City of Chandler.

Scottsdale City Attorney's Office, by Paul M. Norman, Scottsdale, Attorneys for City of Scottsdale.

Tempe City Attorney's Office, by Charlotte Benson, Tempe, Attorneys for City of Tempe.

Phoenix City Attorney's Office, by M. James Callahan, Phoenix, Attorneys for City of Phoenix.

Broening, Oberg, Woods, Wilson & Cass, by Marilyn D. Cage, Phoenix, Attorneys for the City of Goodyear.

Fennemore Craig, P.C., by Lauren J. Caster, Phoenix, Attorneys for ASARCO Inc.

Snell & Wilmer, L.L.P., by Robert B. Hoffman, Phoenix, Attorneys for BHP Copper Co.

Ryley, Carlock & Applewhite, by Michael J. Brophy, L. William Staudenmaier, III, Phoenix, Attorneys for Roosevelt Water Conservation Dist., Phelps Dodge Corp., and Arizona Pub. Serv. Co.

Martinez & Curtis, P.C., by William P. Sullivan, Phoenix, Attorneys for Town of Wickenburg, Town of Gilbert, Cortaro-Marana Irrigation Dist., Bella Vista Water Company, Inc., Bella Vista Ranches LLP, Valencia Water Company, Inc., Cortaro Water Users' Ass'n.

Ellis & Baker, by William D. Baker, Phoenix, Attorneys for New Magma Irrigation Dist.

Fines & Oden, P.L.C., by L. Anthony Fines, Tucson, Attorneys for Gila Valley Irrigation Dist.

Brown & Brown Law Offices, P.C., by David A. Brown, Michael J. Brown, Pinetop, Attorneys for Franklin Irrigation Dist.

John S. Schaper, Phoenix, Attorney for Buckeye Irrigation Co. and Buckeye Water Conservation and Drainage Dist.

Whiteing & Smith, by Jeanne S. Whiteing, Tod Smith, Boulder, CO, Attorneys for Amicus Curiae San Juan Southern Paiute Tribe.

Williams, Janov & Cooney P.C., by Susan M. Williams, Jane Marx, Albuquerque, NM, Attorneys for Amicus Curiae Pueblo of Zuni.

Sonosky, Chambers, Sachse, Endreson & Perry, by Harry R. Sachse, Arthur Lazarus, Jr., Reid Peyton Chambers, Washington, DC, Attorneys for Amicus Curiae Hopi Tribe.

OPINION

ZLAKET, Chief Justice.

¶ 1 We are presented with another issue in the Gila River general stream adjudication. The facts and procedural history of this matter are well documented. See Arizona v. San Carlos Apache Tribe of Arizona, 463 U.S. 545, 557-59, 103 S.Ct. 3201, 3209-10, 77 L.Ed.2d 837 (1983) (subsection entitled "The Arizona Cases"); In re Rights to the Use of the Gila River, 171 Ariz. 230, 232-33, 830 P.2d 442, 444-45 (1992); United States v. Superior Court, 144 Ariz. 265, 270-71, 697 P.2d 658, 663-64 (1985) (subsection entitled "The Controversy"). On December 11, 1990, we granted interlocutory review of six issues decided by the trial court. Four of these have been resolved. See In re the General Adjudication of all Rights to Use Water in the Gila River System and Source, 198 Ariz. 330, 9 P.3d 1069 (2000) [Gila IV] (deciding issue 2 following remand); In re the General Adjudication of all Rights to Use Water in the Gila River System and Source, 195 Ariz. 411, 989 P.2d 739 (1999) [Gila III] (issues 4 & 5); In re the General Adjudication of all Rights to Use Water in the Gila River System and Source, 175 Ariz. 382, 857 P.2d 1236 (1993) [Gila II] (issue 2); In re Rights to the Use of the Gila River, 171 Ariz. 230, 830 P.2d 442 (1992) [Gila I] (issue 1). Today the court addresses issue 3: "What is the appropriate standard to be applied in determining the amount of water reserved for federal lands?"

PROCEDURAL HISTORY

¶ 2 In its September 1988 decision, the trial court stated that each Indian reservation was entitled to

such water as is necessary to effectuate the purpose of that reservation. While as to other types of federal lands courts have allowed controversy about what the purpose of the land is and how much water will satisfy that purpose, as to Indian reservations the courts have drawn a clear and distinct line. It is that the amount is measured by the amount of water necessary to irrigate all of the practicably irrigable acreage (PIA) on that reservation.

Order, Sept. 9, 1988, at 17 (emphasis in original). We review this determination utilizing a de novo standard. See Hall v. Lalli, 194 Ariz. 54, 57, ¶ 5, 977 P.2d 776, 779, ¶ 5 (1999).

DISCUSSION

A. Prior Appropriation and the Winters Doctrine

¶ 3 In Arizona, surface water is subject to the doctrine of prior appropriation. Ariz.Rev.Stat. § 45-141(A) (Supp.2000). An appropriator acquires a legal right to water by putting it to a beneficial use, which is "the basis, measure and limit" of any such entitlement. Id. § 45-141(B). So long as utilization continues, the right remains secure. However, when an owner "ceases or fails to use the water appropriated for five successive years, the right to the use shall cease, and the water shall revert to the public and shall again be subject to appropriation." Id. § 45-141(C).

¶ 4 Prior appropriation adheres to a seniority system determined by the date on which the user initially puts water to a beneficial use. According to state law, the person "first appropriating the water shall have the better right." Id. § 45-151(A). This chronological staging becomes important in times of shortage because preference is given according to the appropriation date, allowing senior holders to take their entire allotments of water before junior appropriators receive any at all. In short, "[t]he oldest titles shall have precedence." Id. § 45-175.

¶ 5 Federal water rights are different from those acquired under state law. Beginning with Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908), the Supreme Court has consistently held that "when the Federal Government withdraws its land from the public domain and reserves it for a federal purpose, the Government, by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation." Cappaert v. United States, 426 U.S. 128, 138, 96 S.Ct. 2062, 2069, 48 L.Ed.2d 523 (1976).

¶ 6 According to Winters and its progeny, a federal right vests on the date a reservation is created, not when water is put to a beneficial use. Arizona v. California, 373 U.S. 546, 600, 83 S.Ct. 1468, 1498, 10 L.Ed.2d 542 (1963) [Arizona I]. Although this entitlement remains subordinate to rights acquired under state law prior to creation of the reservation, it is senior to the claims of all future state appropriators, even those who use the water before the federal holders. Cappaert, 426 U.S. at 138,96 S.Ct. at 2069. In this sense, a federally reserved water right is preemptive. Its creation is not dependent on beneficial use, and it retains priority despite non-use.

¶ 7 Our task is to determine the manner in which water rights on Indian lands are to be quantified. Consideration of this subject necessarily begins with the Winters case. The Fort Belknap Indian reservation in Montana was created by Congress on May 1, 1888 as a "permanent home and abiding place" for the Gros Ventre and Assiniboine tribes. Winters, 207 U.S. at 565, 28 S.Ct. at 208. According to treaty, the government reserved 600,000 acres of land for Indian use, which was a small fraction of the tribes' original holdings. The agreement, however, was silent as to tribal water rights. Within a short period of time, white settlers began to dam or otherwise divert water from the Milk River, which bordered the reservation. In 1905, a federal reservation superintendent wrote to the Commissioner of Indian Affairs protesting these diversions and imploring the government to take "radical action" on the tribes' behalf. Monique C. Shay, Promises of a Viable Homeland, Reality of Selective Reclamation: A Study of the Relationship Between the Winters Doctrine and Federal Water Development in the Western United States, 19 Ecology L.Q. 547, 566 (1992) (citation omitted). Relief came in a lawsuit filed by the government to enjoin Winters and other homesteaders, who claimed senior rights under the doctrine of prior appropriation, from "interfering in any manner with the use by the reservation of 5,000 inches of the water of the river." Winters, 207 U.S. at 565, 28 S.Ct. at 208.

¶ 8 The Supreme Court, recognizing the "lands were arid, and, without irrigation, were practically valueless," id. at 576, 28 S.Ct. at 211, held that Congress, by creating the Indian reservation,...