In re General Adjudication of All rights to use water in the Gila River System and Source

• Decision Date: 19 November 1999
• Docket Number: WC-79-0001,WC-90-0001-IR,WC-90-0007-IR,WC-79-0004
• Citation: 989 P.2d 739
• Parties: <PartyHeader>IN RE THE GENERAL ADJUDICATION OF ALL RIGHTS TO USE WATER IN THE GILA RIVER SYSTEM AND SOURCE </PartyHeader>
• Court: Texas Court of Appeals

[1]

989 P.2d 739

[2]

IN RE THE GENERAL ADJUDICATION OF ALL RIGHTS TO USE WATER IN THE GILA RIVER SYSTEM AND SOURCE

[3]

Supreme Court, Nos. WC-90-0001-IR, through WC-90-0007-IR, (Consolidated) &, WC-79-0001 through, WC-79-0004, (Consolidated)

[4]

Arizona Supreme Court

[5]

Maricopa County Nos. W-1, W-2, W-3, W-4 (Consolidated)

[6]

November 19, 1999

[7] Snell & Wilmer, L.L.P. Phoenix By: Robert B. Hoffman Carlos D. Ronstadt Jeffrey W. Crockett Attorneys for Magma Copper Company Grant Woods, Arizona Attorney General Phoenix By: Joseph E. Clifford Charlotte Benson Attorneys for State of Arizona Roderick G. McDougall, Phoenix City Attorney Phoenix By: M. James Callahan Katherine Ott Verburg Attorneys for City of Phoenix Ulrich & Kessler Phoenix By: William H. Anger Attorneys for Cities of Chandler, Glendale, Mesa, and Scottsdale Kimball & Curry, P.C. Phoenix By: Dalva L. Moellenberg D. Lee Decker Attorneys for Apache Nitrogen Products, Inc., and Arizona Rock Products Association Arizona Public Service Company Phoenix By: Shiela B. Schmidt Attorney for Arizona Public Service Company Ryley Carlock & Applewhite, P.A. Phoenix By: George Read Carlock Michael J. Brophy Sheryl A. Taylor Attorneys for Arizona Public Service Company; Roosevelt Water Conservation District, and Aztec Land and Cattle Company Limited Fennemore Craig Phoenix By: James W. Johnson Lauren J. Caster Attorneys for Cyprus Christmas Mine Corporation, Cyprus Miami Mining Corporation,Cyprus Pima Mining Corporation, Cyprus Sierrita Corporation, Cyprus Twin Buttes Corporation, and Stone Container Corporation Apker Apker Haggard & Kurtz Phoenix By: Burton M. Apker Gerri Apker Kurtz Attorneys for Asarco Incorporated Apker Apker Haggard & Kurtz Phoenix By: Jerry L. Haggard Cynthia M. Chandley Attorneys for Phelps Dodge Corporation Thomas J. Berning, Tucson City Attorney Tucson By: Loretta Humphrey Attorneys for City of Tucson John S. Schaper Phoenix Attorney for Buckeye Irrigation Company and Buckeye Water Conservation and Drainage District Douglas C. Nelson, P.C. Phoenix By: Douglas C. Nelson Attorneys for Members of and Gila Bend-Dendora Valley Water Users Association Strickland & O'Hair, P.C. Tucson By: Jennele Morris O'Hair Attorneys for Cities of Sierra Vista, Benson, and Globe; Towns of Mammoth and Patagonia; Gila Valley Irrigation District; and Franklin Irrigation District Norling Perry Pierson & Kolsrud, P.L.C. Phoenix By: Mark S. Sifferman Attorneys for Tenneco West, Inc. and Tenneco Arizona Properties Corporation Martinez & Curtis, P.C. Phoenix By: William P. Sullivan Attorneys for Arlington Canal Company, Bella Vista Ranches Limited Partnership, Bella Vista Water Company, Inc., Cortaro-Marana Irrigation District, Pima County, Arizona, Cortaro Water Users' Association, Rigby Water Company , Town of Gilbert, and Valencia Water Company, Inc Brown & Brown St. Johns By: David Albert Brown Attorneys for Little Colorado Association Meyer Hendricks Victor Osborn & Maledon, P.A. Phoenix By: Lee H. Storey Attorneys for City of Flagstaff and Rio Rico Properties, Inc John G. Gliege Sedona Attorney for Pinetop Woodland Irrigation Company, Woodland Irrigation Company, and Ponderosa Domestic Water Improvement District Burch & Cracchiolo, P.A. Phoenix By: Daryl Manhart Edwin C. Bull Attorneys for Roosevelt Irrigation District Office of the Tempe City Attorney Tempe By: David R. Merkel Karen S. Gaylord Attorneys for City of Tempe Salmon Lewis & Weldon, P.L.C. Phoenix By: M. Byron Lewis John B. Weldon, Jr Stephen E. Crofton Attorneys for Salt River Project Agricultural Improvement & Power District and Salt River Valley Water Users' Association Sparks & Siler, P.C. Scottsdale By: Joe P. Sparks Kevin T. Tehan John H. Ryley Attorneys for San Carlos Apache Tribe, Tonto Apache Tribe, and Yavapai Apache Indian Tribe, Camp Verde Reservation Cox and Cox Phoenix By: Alfred S. Cox Alan J. Cox Emily A. Lewis and Gila River Indian Community Chandler By: Rodney B. Lewis Attorneys for Gila River Indian Community and Silas Kisto United States Department of Justice Washington, D.C By: John C. Cruden David C. Shilton, Gary B. Randall, F. Patrick Barry, Robert L. Klarquist, Lois J. Schiffer, Edward J. Shawaker, Attorneys for United States of America Sonosky Chambers Sachse & Endreson Washington, D.C. By: Harry R. Sachse Reid Peyton Chambers Arthur Lazarus, Jr. Attorneys for Hopi Tribe Greene Meyer & McElroy Boulder, Colorado By: Scott B. McElroy Attorneys for Navajo Nation Whiteing Thompson & White Boulder, Colorado By: Jeanne S. Whiteing Attorneys for San Juan Southern Paiute Tribe Wayne D. Klump Bowie Pro Se [8] The opinion of the court was delivered by: Fidel, Judge

[9] En Banc

[10] OPINION

[11] Interlocutory Review of September 30, 1988 Order Superior Court in Maricopa County [12] The Honorable Stanley Z. Goodfarb, Judge (retired) [13] Issue 4: Do federal reserved water rights extend to groundwater (underground water) that is not subject to prior appropriation under Arizona law? [14] Issue 5: Are federal reserved rights holders entitled to greater protection from groundwater pumping than are water users who hold only state law rights?

[15] QUESTIONS ANSWERED

[16] ¶1 In the third of a series of interlocutory opinions in this comprehensive general stream adjudication, we address two questions: Do federal reserved water rights extend to groundwater (underground water) that is not subject to prior appropriation under Arizona law? Are federal reserved rights holders entitled to greater protection from groundwater pumping than are water users who hold only state law rights? We answer both questions in the affirmative. [17] I. PROCEDURAL HISTORY [18] ¶2 The purpose of a comprehensive general stream adjudication is to determine "the nature, extent and relative priority of the water rights" of all who use the water of a "river system and source." Ariz. Rev. Stat. Ann. ("A.R.S.") §§ 45-251(2), 252(A); see also U.S.C. § 666 (1982). The underlying adjudication is a consolidated effort to achieve that purpose with respect to waters within the Upper Salt, Verde, Upper Gila, Lower Gila, Agua Fria, Upper Santa Cruz, and San Pedro watersheds. The Little Colorado watershed is the subject of a similar adjudication. [19] ¶3 The pertinent waters within a "river system and source" are (1) those subject to prior appropriation and (2) those subject to claims based on federal law. A.R.S. § 45-251(4). A substantial task is to determine the extent to which each category extends to hydrologically connected underground water pumped from wells. In re the General Adjudication of All Rights to Use Water in the Gila River Sys. ("Gila River II"), 175 Ariz. 382, 386, 857 P.2d 1236, 1240 (1993). [20] ¶4 A detailed procedural history of this case may be found in Gila River II, 175 Ariz. at 384-86, 857 P.2d at 1238-40, and In the Matter of the Rights to the Use of the Gila River ("Gila River I"), 171 Ariz. 230, 232-33, 830 P.2d 442, 444-45 (1992). ^*fn1 It suffices here to state that in 1988 the trial court issued rulings on a number of questions concerning the relationship of groundwater and surface water. The trial court's ruling generated multiple petitions for interlocutory review, leading this court to accept six issues for review. ^*fn2 We resolved issue 1 in Gila River I, upholding procedures that the trial court established to make this massive case more manageable. 171 Ariz. at 243-44, 830 P.2d at 455-56. We resolved issue 2 in part in Gila River II; there we affirmed the Conclusion that water constituting "subflow" is the only underground water subject to appropriation under Arizona law, but disapproved the standard that the trial court adopted to distinguish subflow from non-appropriable "percolating groundwater," remanding the standard to be reshaped after further hearings. 175 Ariz. at 392-93, 857 P.2d at 1246-47. [21] ¶5 After issuing Gila River II, we interrupted consideration of the six issues and accepted special action jurisdiction to resolve a challenge to the constitutionality of Arizona statutes enacted in 1995 that attempted comprehensive procedural and substantive changes to Arizona's surface water law. San Carlos Apache Tribe v. Super. Ct., 193 Ariz. 195, 972 P.2d 179 (1999) (holding retroactive changes unconstitutional in substantial part). We then took jurisdiction of another special action to determine whether the trial court may consult ex parte [22] 5. Do federal reserved rights holders enjoy greater protection from groundwater pumping than holders of state law rights? [23] 6. Must claims of conflicting water use or interference with water rights be resolved as part of the general adjudication? with the Department of Water Resources in its statutory role as technical adviser to the court. See San Carlos Apache Tribe v. Bolton, 194 Ariz. 68, 977 P.2d 790 (1999) (rejecting petition to disqualify trial court and director of Department). We now return to the original six issues and resolve issues 4 and 5. [24] II. ON GROUNDWATER, SURFACE WATER, SUBFLOW, AND THE RESERVED WATER RIGHTS DOCTRINE [25] ¶6 The trial court held that federal "reserved rights" apply not only to surface water and subflow, appropriable categories under Arizona law, but also to non-appropriable groundwater. The court also held that federal reserved rights holders are entitled to protection from any off-reservation groundwater pumping that "significantly diminishes" the amount of water available to satisfy the purpose of the reservation. These rulings attribute more expansive water rights to federal claimants than to those asserting claims pursuant only to state law. To explain this aspect of the trial court's decision and to set the context for our Discussion, we review some history and terms.

[26] A. Arizona's Bifurcated System of Water Rights

[27] ¶7 In Gila River II, we summarized the bifurcation of Arizona law respecting surface water and groundwater: [28] [R]ights associated with water found in lakes, ...