Arizona Public Service Co. v. Long, M-S-R

CourtSupreme Court of Arizona
Citation160 Ariz. 429,773 P.2d 988
Docket NumberM-S-R,No. CV-86-0634-T,CV-86-0634-T
PartiesARIZONA PUBLIC SERVICE COMPANY, an Arizona corporation; Salt River Project Agricultural Improvement & Power District, a political subdivision and an agricultural improvement district of the State of Arizona; Salt River Valley Water Users' Association, an Arizona corporation; City of Phoenix, an Arizona municipal corporation; City of Glendale, an Arizona municipal corporation; City of Scottsdale, an Arizona municipal corporation; City of Tempe, an Arizona municipal corporation; City of Mesa, an Arizona municipal corporation; Town of Youngtown, an Arizona municipal corporation; City of Tolleson, an Arizona municipal corporation; Southern California Edison Company, a California corporation; Public Service Company of New Mexico, a New Mexico corporation; El Paso Electric Company, a Texas corporation; Southern California Public Power Authority, a California Public joint powers agency;Power Agency, a California joint powers agency; and the Department of Water and Power of the City of Los Angeles, a California municipal corporation, Defendants/Plaintiffs/Other Indispensable Parties-Appellees, v. John F. LONG; John F. Long Homes, Inc., an Arizona corporation; and John F. Long Properties, Inc., an Arizona corporation, Defendants-Appellants. ARIZONA PUBLIC SERVICE COMPANY, an Arizona corporation, Defendants-Plaintiffs Cross Appellants, and Southern California Edison Company; Public Service Company of New Mexico; El Paso Electric Company; Department of Water and Power of the City of Los Angeles; and Southern California Public Power Authority, Defendants, Cross Appellants, v. John F. LONG; John F. Long Homes, Inc., an Arizona corporation; and John F. Long Properties, Inc., an Arizona corporation, Defendants-Appellants, Cross Appellees. A TUMBLING T RANCHES, an Arizona partnership; William T. Gladden and Nicole L. Gladden, husband and wife; David L. Gladden and Sharon M. Gladden, husband and wife, Plaintiffs-Appellants, v. CITY OF PHOENIX, an Arizona municipal corporation; City
Decision Date17 April 1989

[160 Ariz. 430] Jennings, Strouss & Salmon by John B. Weldon, Jr., Stephen E. Crofton and M. Byron Lewis, Phoenix, Kevin J. Worthen, Brigham Young Law School, Provo, Utah, for defendants/plaintiffs/Other Indispens

[160 Ariz. 431] able parties/appellees Salt River Project Agricultural Improvement & Power Dist., Salt River Valley Water Users' Ass'n

Bill Stephens & Associates by Bill Stephens, William H. Anger and Karen L. Tarr, Phoenix, for defendants/plaintiffs/appellees Cities of Phoenix, Glendale, Scottsdale, Tempe, Mesa, Youngtown and Tolleson.

Streich, Lang, Weeks & Cardon, P.A. by William S. Hawgood, II, Marcia Horn Yavitiz, Paula G. Kirby and Dale E. Pontius, Phoenix, for defendants/appellants/cross-appellees John F. Long, John F. Long Homes and John F. Long Properties.

Lewis and Roca by Tom Galbraith, Jessica H. Youle and Janet Napolitano, Robbins & Green, P.A. by Robert H. Green and Brian Imbornoni, Douglas C. Nelson, P.C. by Douglas C. Nelson, Phoenix, for plaintiffs/appellants/cross-appellees A Tumbling T Ranches, William T. Gladden, David L. Gladden, Nicole L. Gladden and Sharon M. Gladden.

Snell & Wilmer by Warren E. Platt, Robert B. Hoffman and Martha E. Gibbs, Phoenix, for defendants/appellees/cross-appellants Arizona Public Service, Dep't of Water & Power of Los Angeles; El Paso Elec. Co., Public Service Co. of New Mexico, Southern California Edison Co., Southern California Public Power Authority.

Frederick S. Dean, Tucson City Atty. by Loretta Humphrey, Tucson, for amicus curiae.

Fennemore, Craig by James W. Johnson, Bryan, Cave, McPheeters & McRoberts by Kathleen Ferris, Arizona Dept. of Water Resources by Elizabeth A. Rieke, Chief Counsel and Scot C. Stirling, Chief itigator, Phoenix, for amicus curiae Arizona Dept. of Water Resources.

HOWARD, Court of Appeals Judge.


This case involves the sale by appellee Cities to the appellee Utilities of sewage effluent. Two questions are posed: (1) Can the Cities contract to sell sewage effluent for use on lands other than those involved in the original appropriation? And (2) once the Cities dump sewage effluent into a stream and such effluent is appropriated by downstream users, must the Cities continue such dumping ad infinitum? We answer the first question in the affirmative and the second in the negative.

The Utilities have also filed a cross-appeal regarding certain language used by the trial court in its judgment. In view of our disposition and our holdings in this opinion, the cross-appeal is moot.


While this appeal is limited to state water law issues, the Longs previously attacked the contracts involved here on municipal law grounds in the case of City of Phoenix v. Long, 158 Ariz. 59, 761 P.2d 133 (App.1988). In that case the trial court entered summary judgment and Division Two of the Court of Appeals affirmed the ruling on appeal. Because two of the judges of Division Two, who participated in that case, including the author of this opinion, are also sitting as Supreme Court justices in this appeal, and because a petition for review of City of Phoenix v. Long, supra, had been filed and was pending before the Supreme Court at the time oral argument was heard in this case, the Longs filed a motion suggesting that the Division Two judges should recuse themselves. Prior to oral argument this court, in conference, considered the Longs' motion and unanimously rejected it because the issues involved in City of Phoenix v. Long, supra, (whether the City could make a contract that would be binding for that length of time and whether the contracts were invalid for failure to comply with competitive bidding requirements) are not involved here. The reason that Justices Gordon and Holohan recused themselves is set forth in the order which is reproduced in the appendix. 1

[160 Ariz. 432]

A. The Contracts

This litigation concerns two contracts for the sale of sewage effluent. The first was entered into in 1973 when the Utilities were planning a nuclear power project to be located in Arizona (Palo Verde). Because the Utilities were required to secure an adequate supply of water for the construction and operation of the plant, they contracted with the Cities (except the City of Tolleson) to purchase an option to obtain sewage effluent once the various units of the power plant began operation. The agreement was structured as four options, one for each of the originally planned Palo Verde generators, totalling 140,000 acre feet per year. The agreement terminates four years after the exercise of the fourth option, which is exercisable until December 31, 1999. The Utilities exercised the first two options in February and December 1982 for a total of 70,000 acre feet. As a result of the deletion of the fourth reactor and changes in the design of the cooling systems for the remaining reactors, Palo Verde's water needs under current plans appear to be in the range of 64,050 acre feet per year.

The Utilities entered into a second agreement for the purchase of sewage effluent with the City of Tolleson approximately eight years later, in 1981. Under that agreement Tolleson has committed to the Utilities an additional 9,282 acre feet of sewage effluent from its treatment plant. The sewage effluent is transported by pipeline to approximately 50 miles west of Phoenix for use as a cooling agent at the Utilities' Palo Verde Nuclear Generating Station. As indicated in City of Phoenix v. Long, supra, since entering into the effluent purchase contracts, the Utilities have spent some $290,000,000 to construct both a pipeline for the delivery of effluent from the treatment plants to the Palo Verde site, and a plant to further treat the effluent so that it can be used as a coolant.

B. The Parties

A Tumbling T Ranches owns the Enterprise Ranch, located on the Gila River approximately 20 miles southwest of Buckeye, Arizona. The Salt River is an upstream tributary of the Gila. It is alleged that much of the irrigation water used on the Enterprise Ranch is obtained from diversion of Gila River stream flow under decreed appropriative rights adjudicated and established in 1958. A Tumbling T asserts that in recent years most of the water diverted to satisfy its appropriative rights has been treated sewage effluent discharge by the...

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9 cases
  • Montana v. Wyoming
    • United States
    • United States Supreme Court
    • May 2, 2011
    ...497, 506, 44 S.Ct. 182, 68 L.Ed. 407 (1924) (internal quotation marks omitted); see also 563 U.S. 381 Arizona Pub. Serv. Co. v. Long, 160 Ariz. 429, 437–438, 773 P.2d 988, 996–997 (1989) ("No appropriator can compel any other appropriator to continue the waste of water which benefits the fo......
  • Davis v. Agua Sierra Resources, L.L.C., 1 CA-CV 06-0806.
    • United States
    • Court of Appeals of Arizona
    • January 15, 2008
    ...surface water, not percolating groundwater. Id. at 384, 257 P.2d at 397. 12. We note that Arizona Public Service Co. v. Long, 160 Ariz. 429, 773 P.2d 988 (1989), states that "[o]ne only has the right to put [water] to beneficial use" and "[t]his applies to both surface water . . . and groun......
  • Strawberry Water Co. v. Paulsen
    • United States
    • Court of Appeals of Arizona
    • July 29, 2008
    ...a groundwater source and then released on the surface could arguably be considered effluent as described in Ariz. Pub. Serv. Co. v. Long, 160 Ariz. 429, 435, 773 P.2d 988, 995 (1989), but the legislature has since changed the underlying definition of effluent, which is now limited to water ......
  • Phelps Dodge v. Az Dept. of Water Resources, 1 CA-CV04-0491.
    • United States
    • Supreme Court of Arizona
    • August 30, 2005
    ...concur. --------------- Notes: 1. Because this case involves a stream, it is distinguishable from Arizona Public Service Co. v. Long, 160 Ariz. 429, 773 P.2d 988 (1989). There, the Arizona Supreme Court held that effluent was not subject to appropriation because it was neither included in t......
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2 books & journal articles
  • Law, Land Use, and Groundwater Recharge.
    • United States
    • May 1, 2021
    ...834, 836 (Nev. 1915) ("So long as such waters exist upon their lands, it is their property...."). (237.) See Ariz. Pub. Serv. Co. v. Long, 773 P.2d 988, 996-97 (Ariz. 1989) (en banc) ("If the senior appropriator, through scientific and technical advances, can utilize his water so that none ......
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    • Environmental Law Reporter No. 40-4, April 2010
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    ...on the law of the river, other surface water rights are allocated by prior appropriation, and rights to groundwater difer by location. 41. 773 P.2d 988 (Ariz. 1989). 42. Ariz. Rev. Stat. §45-141(E): he following water exchange arrangements or substitutions do not constitute an abandonment o......

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