San Carlos Apache Tribe v. Superior Court ex rel. County of Maricopa
| Decision Date | 07 January 1999 |
| Docket Number | No. CV-95-0161-SA,CV-95-0161-SA |
| Citation | 972 P.2d 179,193 Ariz. 195 |
| Parties | , 286 Ariz. Adv. Rep. 14 The SAN CARLOS APACHE TRIBE, the Tonto Apache Tribe and the Yavapai Apache Tribe, all Federally recognized Indian Tribes, Petitioners. v. The SUPERIOR COURT of Arizona, In and For the COUNTY OF MARICOPA, and Honorable Susan R. Bolton, a judge thereof; The Superior Court of Arizona, in and for the County of Apache, and the Honorable Allen G. Minker, a judge thereof; The Honorable John E. Thorson, Special Master, Arizona General Stream Adjudications; State of Arizona, Rita Pearson, Director, Arizona Department of Water Resources; Grant J. Woods, 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 and the Little Colorado River System and Source as real parties in interest, Respondents. |
| Court | Arizona Supreme Court |
¶1 We previously accepted jurisdiction of this special action challenging the constitutionality of two legislative measures that revise many portions of Arizona's surface water law. On remand, the trial judge held most of the statutory changes unconstitutional because they applied retroactively to affect vested property rights, thus violating the due process clause of article II, section 4 of the Arizona Constitution, or because they violated the separation of powers clause of article III of the Arizona Constitution. For the most part, we agree and affirm.
¶2 Because "there is not enough water to meet everyone's demands, a determination of priorities and a quantification of the water rights accompanying those priorities must be made." United States v. Superior Court/San Carlos Apache Tribe, 144 Ariz. 265, 270, 697 P.2d 658, 663 (1985) (hereinafter San Carlos II ). The attempt to adjudicate all surface water rights began in 1974 when the Salt River Valley Water Users' Association filed a petition with the State Land Department for adjudication of its water rights under former A.R.S. §§ 45-231 to 45-245. Id. In 1979, those statutes were repealed and superseded by A.R.S. §§ 45-251 to 45-260. Id. In accordance with the statutory changes, Salt River's administrative proceeding was transferred to Maricopa County Superior Court, where it was consolidated with other petitions for adjudication of water rights in the Salt, Verde, and San Pedro Rivers. In re Rights to the Use of the Gila River, 171 Ariz. 230, 233, 830 P.2d 442, 445 (1992) (hereinafter Gila River Adjudication I ). Subsequently, the trial judge expanded the scope of the adjudication to include the Upper Agua Fria, Upper Gila, Lower Gila, and Upper Santa Cruz Rivers. Id. A similar proceeding is pending involving rights in the Little Colorado River. Today, more than 27,000 parties have been served and over 77,000 claims remain to be adjudicated in the Gila River and Little Colorado River adjudications.
¶3 In 1986, the trial judge entered an order that established procedures for managing this complex litigation and identified legal issues the court needed to resolve before finally adjudicating individual claims. Id. In September 1989, we issued a Special Procedural Order Providing for Interlocutory Appeals and Certifications designed to "provide a mechanism [for appellate] review [of] the important legal decisions of the trial court as promptly as practicable at the outset of the adjudication." Id. at 233 n. 2, 830 P.2d at 445 n. 2. Pursuant to this order, in December 1990 we granted interlocutory review of six issues. We have published opinions addressing issues 1 and 2. See Gila River Adjudication I, 171 Ariz. 230, 830 P.2d 442 (); 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) () (hereinafter Gila River Adjudication II ). Issues 4 and 5, which pertain to alleged application of federal reserved rights to groundwater, have been argued and submitted to the court for decision. 1
¶4 Although a number of issues have been or soon will be resolved, many more legal and evidentiary issues remain pending on appeal or in the trial court. Nevertheless, in 1995--in the midst of this adjudication and the Little Colorado River proceeding--the Legislature enacted House Bills 2276 and 2193, which revised numerous statutes dealing with surface water rights and the general adjudication process. The San Carlos Apache Tribe, Tonto Apache Tribe, and Yavapai Apache Tribe--Camp Verde Reservation (the Apache Tribes) filed a special action in this court challenging the...
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