In re Gila River System

• Decision Date: 22 September 2000
• Citation: 9 P.3d 1069,198 Ariz. 330
• Parties: In re the GENERAL ADJUDICATION OF ALL RIGHTS TO USE WATER IN the GILA RIVER SYSTEM AND SOURCE
• Court: Arizona Supreme Court

9 P.3d 1069

198 Ariz. 330

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

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

Supreme Court of Arizona.

September 22, 2000.

Fennemore Craig, P.C. By: James W. Johnson, Lauren J. Caster, Jeffrey C. Thacker, Timothy Berg, Phoenix, Attorneys for Cyprus Climax Metals Company and its Subsidiaries Cyprus Christmas Mine Corporation, Cyprus Miami Mining Corporation, Cyprus Pima Mining Corporation, Cyprus Sierrita Corporation, and Cyprus Twin Buttes Corporation.

Snell & Wilmer, L.L.P. By: Robert B. Hoffman, Carlos D. Ronstadt, Jeffrey W. Crockett, Phoenix, Attorneys for Magma Copper Company.

Apker, Apker, Haggard & Kurtz, P.C. By: Burton M. Apker, Gerrie Apker Kurtz, Phoenix, Attorneys for ASARCO Incorporated.

Ellis, Baker & Porter, Ltd. By: William D. Baker, Paul R. Orme, Phoenix, Attorneys for Central Arizona Irrigation and Drainage District, Maricopa-Stanfield Irrigation & Drainage District, and New Magma Irrigation & Drainage District.

Janet Napolitano, Arizona Attorney General By: Charlotte Benson, Joseph E. Clifford, Mary Mangotich Grier, Phoenix, Attorneys for State of Arizona.

Brown & Brown By: David A. Brown, Michael J. Brown, Pinetop, Attorneys for Little Colorado Water Association and St. David Irrigation District.

Broening, Oberg & Woods By: Marilyn D. Cage, Phoenix, Attorneys for the City of Goodyear.

Ryley, Carlock & Applewhite By: George Read Carlock, Michael J. Brophy, Sheryl A. Taylor, Phoenix, Attorneys for Roosevelt Water Conservation District and Arizona Public Service Company.

Lewis and Roca By: Tom Galbraith Randall H. Warner, Phoenix, Attorneys for Paloma Investment Limited Partnership.

Apker, Apker, Haggard & Kurtz, P.C. By: Jerry L. Haggard, Cynthia M. Chandley, Phoenix, Attorneys for Phelps Dodge Corporation.

Michael B. House, Tucson City Attorney By: Loretta Humphrey, Tucson, Attorneys for City of Tucson.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, P.A. By: Ralph

E. Hunsaker, Phoenix, Attorneys for Church of Jesus Christ of Latter-day Saints.

Burch & Cracchiolo, P.A. By: Daryl Manhart, Edwin C. Bull, Phoenix, Attorneys for Roosevelt Irrigation District.

Gallagher & Kennedy, P.A. By: Dalva L. Moellenberg, D. Lee Decker, Phoenix, Attorneys for Apache Nitrogen Products, Inc. and Arizona Rock Products Association.

Ronald N. Rovey, Sedona, Attorney for Verde Valley Claimants.

Arizona Public Service Company By: Shiela B. Schmidt, Phoenix, Attorney for Arizona Public Service Company.

Meyer, Hendricks, Victor, Osborn & Maledon, P.A. By: Lee A. Storey, Joan S. Burke, Phoenix, Attorneys for Rio Rico Properties, Inc.

Strickland & O'Hair, P.C. By: Jennele Morris O'Hair, Tucson, Attorneys for Cities of Sierra Vista, Benson, and Globe; Towns of Mammoth and Patagonia; and Gila Valley Irrigation District and Franklin Irrigation District.

Martinez & Curtis, P.C. By: William P. Sullivan, Phoenix, Attorneys for Town of Wickenburg, Arlington Canal Company, Bella Vista Ranches Limited Partnership, Bella Vista Water Company, Inc., Cortaro Water Users' Association, Cortaro-Marana Irrigation District, Pima County, Town of Gilbert, and Valencia Water Company, Inc.

Jennings, Strouss & Salmon, P.L.C. By: M. Byron Lewis, John B. Weldon, Jr. Stephen E. Crofton, Phoenix, Attorneys for Salt River Project Agricultural Improvement and Power District, and Salt River Valley Water Users' Association.

United States Department of Justice By: Lois J. Schiffer, Robert L. Klarquist, David C. Shilton, Gary B. Randall, F. Patrick Barry, Washington, D.C., Attorneys for United States.

Cox and Cox By: Alfred S. Cox, Alan S. Cox, Phoenix, and Rodney B. Lewis, Chandler, Attorneys for Gila River Indian Community and Silas Kisto.

Chandler, Tullar, Udall & Redhair By: Stephen B. Weatherspoon, Tucson, Attorneys for The Nature Conservancy.

Sparks & Siler, P.C. By: Joe P. Sparks, John H. Ryley, Kevin T. Tehan, Scottsdale, Attorneys for San Carlos Apache Tribe, Tonto Apache Tribe, and Yavapai Apache Tribe.

Roderick G. McDougall, Phoenix City Attorney By: M. James Callahan, Phoenix, Attorneys for City of Phoenix.

Office of the Tempe City Attorney By: David R. Merkel, Karen S. Gaylord, Tempe, Attorneys for City of Tempe.

Riney B. Salmon II, P.C. By: Riney B. Salmon II, Phoenix, Attorney for Maricopa County Municipal Water Conservation District No. 1 and San Carlos Irrigation & Drainage District.

John S. Schaper, Phoenix, Attorney for Buckeye Irrigation Company and Buckeye Water Conservation and Drainage District.

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

PELANDER, Judge.

¶ 1 This appeal again presents the second of six issues on which we granted interlocutory review in the Gila River general stream adjudication. The facts and procedural history of this case are set forth in detail in In re the General Adjudication of All Rights to Use Water in the Gila River System and Source, 175 Ariz. 382, 384-86, 857 P.2d 1236, 1238-40 (1993) ("Gila River II"), and in In re Rights to the Use of the Gila River, 171 Ariz. 230, 232-33, 830 P.2d 442, 444-45 (1992) ("Gila River I"). In short, the primary issue we consider here is whether, after remand in Gila River II, the trial court properly determined what underground water constitutes "subflow" of a surface stream, thus making it appropriable under A.R.S. § 45-141(A).¹ ¶ 2 Based on its consideration of extensive evidence presented on remand, including the opinions of multiple experts, the trial court defined "subflow" as the "`saturated floodplain Holocene alluvium'"<sup>2</sup> because "[t]he weight of the evidence" pointed to that geological unit "as the most credible `subflow' zone." We conclude, and the parties conceded at oral argument, that the record reasonably supports that central finding as well as the trial court's related findings. We further conclude that the trial court's ruling is not invalidated by this court's prior decisions relating to subflow. See Gila River II; Maricopa County Mun. Water Conservation Dist. No. One v. Southwest Cotton Co., 39 Ariz. 65, 4 P.2d 369 (1931). Finally, the ruling comports with hydrological reality as it is currently understood. See In re the General Adjudication of All Rights to Use Water in the Gila River System and Source, 195 Ariz. 411, ¶ 9, 989 P.2d 739, ¶ 9 (1999) ("Gila River III"). For these reasons, we affirm the trial court's order in its entirety.

I. GENERAL PRINCIPLES OF SUBFLOW

¶ 3 In Gila River II, we explained the importance of distinguishing between groundwater and surface water. 175 Ariz. at 386, 857 P.2d at 1240. Essentially, our bifurcated system of allocating water rights differentiates groundwater users from surface water users. By statute, surface water is subject to the doctrines of prior appropriation and beneficial use. See A.R.S. §§ 45-141(A), 45-251(7). Percolating groundwater, on the other hand, is not appropriable and may be pumped by the overlying landowner, subject to the doctrine of reasonable use, Gila River II, 175 Ariz. at 386, 857 P.2d at 1240; Bristor v. Cheatham, 75 Ariz. 227, 255 P.2d 173 (1953), and the federal reserved water rights doctrine discussed in Gila River III.

¶ 4 The boundary between surface water and groundwater is not at all clear. Most surface streams not only flow above the ground but also have "subflow." As the parties correctly point out, "subflow" is not a scientific, hydrological term. But for almost seventy years, this court has defined "subflow," for legal purposes, as "those waters which slowly find their way through the sand and gravel constituting the bed of the stream, or the lands under or immediately adjacent to the stream, and are themselves a part of the surface stream." Southwest Cotton, 39 Ariz. at 96, 4 P.2d at 380. See also Gila River II, 175 Ariz. at 390 n. 9, 857 P.2d at 1244 n. 9, quoting Black's Law Dictionary 1425 (6th ed.1990); 2 Clesson S. Kinney, A Treatise on the Law of Irrigation and Water Rights § 1161, at 2106-07 (2d ed.1912) ("subflow" is "the broad and deep subterranean volume of water which slowly flows through the sand and gravel underlying most, if not all, of the streams which traverse the country adjacent to the mountain systems of the arid region").

¶ 5 As we noted in Gila River III, "[t]he notion of `subflow' is significant in Arizona law, for it serves to mark a zone where water pumped from a well so appreciably diminishes the surface flow of a stream that it should be governed by the same law that governs the stream." 195 Ariz. 411,¶ 8, 989 P.2d 739, ¶ 8. In addition, "subflow" is "probably much greater in volume in some cases than the water upon the surface, and [is] ... a valuable portion of the well-defined surface stream." Kinney, supra at 2107. Because subflow is considered part of the surface stream, it is appropriable as such under § 45-141(A). See Gila River II, 175 Ariz. at 387, 857 P.2d at 1241. See also Gila River III, 195 Ariz. 411, ¶ 8, 989 P.2d 739, ¶ 8. Under Arizona's bifurcated system of managing surface and groundwater, the concept of subflow serves to protect appropriable surface water rights against interference caused by the pumping of groundwater. Because water is a very precious and limited commodity in Arizona, much turns on how "subflow" is determined.

¶ 6 Underground waters are presumed to be percolating and, therefore, not appropriable as subflow. Southwest Cotton, 39 Ariz. at 85, 4 P.2d at 376. One who asserts that underground water is a part of a stream's subflow must prove that fact by clear and convincing evidence. Id. "If [the Department of Water Resources (DWR)] uses the proper test and relies on appropriate criteria for determining whether a well meets the test, its determination that a well...