San Carlos Apache Tribe v. Bolton ex rel. County of Maricopa

• Decision Date: 27 April 1999
• Docket Number: No. CV-98-0143-SA,CV-98-0143-SA
• Citation: 194 Ariz. 68,977 P.2d 790
• Parties: 294 Ariz. Adv. Rep. 15 The SAN CARLOS APACHE TRIBE, the Tonto Apache Tribe, and the Yavapai-Apache Nation, all Federally recognized Indian Tribes, Petitioners, v. Hon. Susan R. BOLTON, Judge of the Superior Court of the State of Arizona, In and For the COUNTY OF MARICOPA; Michael J. Pearce, Legal Counsel for the Arizona Department of Water Resources, and Rita Pearson, Director, Arizona Department of Water Resources, Respondents, and Janet Napolitano, Arizona Attorney General; Arizona State Land Department; Salt River Valley Water Users Association; Phelps Dodge Corporation; Roosevelt Water Conservation District; and all other claimants to water rights in the Gila River System and Source, Real Parties in Interest.
• Court: Arizona Supreme Court

Page 790

977 P.2d 790

294 Ariz. Adv. Rep. 15

The SAN CARLOS APACHE TRIBE, the Tonto Apache Tribe, and the Yavapai-Apache Nation, all Federally recognized Indian Tribes, Petitioners, v. Hon. Susan R. BOLTON, Judge of the Superior Court of the State of Arizona, In and For the COUNTY OF MARICOPA; Michael J. Pearce, Legal Counsel for the Arizona Department of Water Resources, and Rita Pearson, Director, Arizona Department of Water Resources, Respondents and Janet Napolitano, Arizona Attorney General; Arizona State Land Department; Salt River Valley Water Users Association; Phelps Dodge Corporation; Roosevelt Water Conservation District; and all other claimants to water rights in the Gila River System and Source, Real Parties in Interest.

No. CV-98-0143-SA.

Supreme Court of Arizona En Banc.

April 27, 1999.

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

Gary L. Stuart, Phoenix, Attorney for Respondent Judge Hon. Susan R. Bolton.

Miller, LaSota & Peters, P.L.C. By: Donald M. Peters, Susan A. Cannata, Phoenix, Attorneys for Respondents Michael J. Pearce and Rita Pearson.

Janet Napolitano, Arizona Attorney General By: Joseph E. Clifford, Charlotte Benson, Phoenix, Attorneys for Real Parties in Interest Janet Napolitano and Arizona State Land Department.

Salmon Lewis & Weldon, P.L.C. By: M. Byron Lewis, John B. Weldon, Jr., Stephen E. Crofton, Lisa M. McKnight, Phoenix, Attorneys for Real Parties in Interest Salt River Valley Water Users Association, Salt River Project Agricultural Improvement and Power District, and City of Tempe.

Phelps Dodge Corporation By: Cynthia M. Chandley, Phoenix, and Gust Rosenfeld, P.L.C. By: Jerry L. Haggard, Phoenix, Attorneys for Real Party in Interest Phelps Dodge Corporation.

Ryley, Carlock & Applewhite, P.A. By: George Read Carlock, Michael J. Brophy, Barry R. Sanders, Phoenix, Attorneys for Real Parties in Interest Roosevelt Water Conservation District and Arizona Public Service Company.

Brown & Brown By: David Albert Brown, Michael John Brown, Pinetop, Attorneys for Joinder Real Parties in Interest Gila Valley Irrigation District and Franklin Irrigation District.

Ulrich Kessler & Anger, P.C. By: Paul G. Ulrich, Phoenix, Attorneys for Joinder Real Parties in Interest Cities of Chandler, Glendale, Mesa, and Scottsdale.

Hopi Indian Tribe By: A. Scott Canty, Kykotsmovi, and Sonosky Chambers Sachse & Enderson By: Reid P. Chambers, Washington, D.C., Attorneys for Joinder Real Party in Interest Hopi Indian Tribe.

Barrow & Barrow By: Irene F. Barrow, Flagstaff, and Whiteing & Thompson By: Jeanne S. Whiteing, Boulder, CO, Attorneys for Joinder Real Party in Interest San Juan Southern Paiute Tribe.

Navajo Nation Department of Justice By: Stanley M. Pollack, Window Rock, and Greene Meyer & McElroy, P.C. By: Scott McElroy, Alice E. Walker, Boulder, CO, Attorneys for Joinder Real Party in Interest The Navajo Nation.

Hufford Horstman McCullough & Mongini, P.C. By: C. Benson Hufford, Flagstaff, and Williams & Janov, P.C. By: Susan M. Williams, Albuquerque, NM, Attorneys for

Joinder Real Party in Interest Pueblo of Zuni Tribe.

United States Department of Justice By: Robert L. Klarquist, F. Patrick Barry, Washington, D.C., Attorneys for Joinder Real Party in Interest United States.

Gila River Indian Community By: Rodney B. Lewis, Steven J. Heeley, Chandler and John T. Helstand, Gilbert, Attorneys for Joinder Real Parties in Interest Gila River Indian Community and Silas Kisto.

O P I N I O N

DRUKE, Judge.

¶1 Petitioners, the San Carlos Apache Tribe, the Tonto Apache Tribe, and the Yavapai-Apache Nation, filed an original petition for special action with this court pursuant to the Arizona Rules of Procedure for Special Actions, 17B A.R.S. See also Ariz. Const. art. VI, § 5(1). Petitioners are claimants in a consolidated action known generally as the Gila River General Stream Adjudication, which will adjudicate the water rights in the Gila River and its sources. Petitioners seek to disqualify the respondent judge assigned to the Adjudication, the Honorable Susan Bolton, and chief legal counsel for the Arizona Department of Water Resources (DWR), Michael Pearce, based on ex parte communications among the judge, Pearce, and DWR. Judge Bolton has acknowledged that ex parte communications took place, but has expressed the view that she is "permitted to consult with the DWR on technical issues and that such consultation can be ex parte." Because the court has the statutory responsibility for assigning judges to the general adjudication, A.R.S. § 45-252(C), and because petitioners have no remedy by appeal, Rule 1(a), Ariz. R.P. Spec. Actions, we previously accepted jurisdiction of the special action and now address the merits.

¶2 The Adjudication has been pending for some twenty-five years, see United States v. Superior Court, 144 Ariz. 265, 697 P.2d 658 (1985), and was initially assigned to the Honorable Stanley Goodfarb. During his tenure, Judge Goodfarb entered several interlocutory orders that raised six issues we agreed to review by special action, the first two of which have been decided. See In re Rights to the Use of the Gila River, 171 Ariz. 230, 830 P.2d 442 (1992); In re General Adjudication of All Rights to Use Water in the Gila River System and Source, 175 Ariz. 382, 857 P.2d 1236 (1993). More recently, in San Carlos Apache Tribe v. Superior Court, 193 Ariz. 195, 972 P.2d 179 (1999), we resolved numerous constitutional challenges to the 1995 legislative revisions of the general adjudication process and surface water rights. Following Judge Goodfarb's retirement, this court assigned the case to Judge Bolton on December 8, 1994. Shortly thereafter, DWR's director wrote to Judge Bolton about the Adjudication. ¹ The director's letter indicated she "would like to discuss the case" with Judge Bolton, suggested a "luncheon meeting" for the "initial discussion about the general stream adjudication process," and offered to make her staff available "for more detailed discussions about the technical services of [DWR]."

¶3 The director again wrote to Judge Bolton on January 23, 1995, enclosing a copy of House Bill 2276 and commenting that "it's very difficult to predict the bill's final outcome," but stating that she thought a copy of the bill would give Judge Bolton "a good idea of some of the changes proposed to the adjudication and surface water chapters of Title 45." The director also enclosed a copy of "the report of the activities of the Joint Select Committee on the General Stream Adjudications" to give the judge "a good idea of the substance of the discussions held by the committee members." The director closed by stating she was looking "forward to our lunch on Monday, January 30th."

¶4 Pearce first corresponded with Judge Bolton on February 23, 1995, stating in pertinent part:

As we discussed in our meeting last week, Steve Erb has prepared the enclosed synopsis of what we believe to be the most immediate issues facing the superior court in the Gila River general stream adjudication. We hope that this will be helpful to you in preparing for your first status conference with the parties.

The synopsis first discussed the San Pedro River and Upper Salt River hydrographic survey reports (HSRs), indicating that the proposed legislative amendments would "substantively alter the manner in which state law claims are presented and analyzed in the HSR." The synopsis then briefly described the potential impact of the amendments and posed such issues as whether their adoption would require DWR to revise the HSRs and whether revision should await resolution of three of the six issues this court had agreed to review. Finally, the synopsis reviewed the various stages of settlement on some claims and suggested that Judge Bolton ask the parties for status reports. ²

¶5 Pearce next wrote Judge Bolton on August 15, 1995, thanking her for meeting with him and two others from DWR the previous Friday. Pearce told Judge Bolton he was enclosing, "as you requested," the suggested text for a minute entry that would address a petition by the Gila River Indian Community (GRIC) for an HSR of its reservation. Pearce stated the suggested text "carefully define[d] the nature of the request for technical assistance from the director" and gave DWR "clear direction and useful latitude." Judge Bolton granted the GRIC's request for an HSR by minute entry dated August 31, 1995, adopting the suggested text almost verbatim.

¶6 The next reported ex parte communication between Judge Bolton and DWR occurred the following year. Judge Bolton, two other adjudication judges, the water master, DWR's director, Pearce, and two more DWR employees gathered for a retreat in Clifton, Arizona, on November 12 and 13, 1996. The water master's correspondence to the participants observed that "[s]everal years ha[d] gone by since our last retreat" and suggested that the participants first "share his or her candid perspectives [at the retreat] on where we are in the adjudications" and then discuss "some of the major questions," such as "our overall strategy for moving forward," "the important federal and tribal reservations to address," and how "the court/DWR [can] assist settlement efforts." Included in the retreat's agenda were such topics as the "Gila River Indian Reservation Report" and the "Future of De Minimis Water Rights in Arizona."

¶7 Because petitioners believed DWR had suggested the text for the minute entry of August 31, 1995, they requested at a court proceeding in November 1997 that Judge Bolton provide the parties with copies of all written communications between her and DWR. At the time, the judge said she was unaware of any such communications, but when she later reviewed the superior court file and found Pearce's letter with the suggested text, she entered a minute...