U.S. v. Superior Court In and For Maricopa County

Decision Date30 January 1985
Docket NumberNos. 17623-S,17681-SA,s. 17623-S
Citation697 P.2d 658,144 Ariz. 265
PartiesUNITED STATES of America, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, Hon. Stanley Z. Goodfarb, a judge thereof; Arizona Department of Water Resources, and Wesley E. Steiner, a director thereof; and Numerous Claimants To the Waters of the Gila River System and Source, Real Parties in Interest, Respondents. The SAN CARLOS APACHE TRIBE and the Tonto Apache Tribe, Petitioners, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, Hon. Stanley Z. Goodfarb, Judge, Maricopa County Superior Court; and Arizona Department of Water Resources; Salt River Valley Water Users Association; Phelps Dodge Corporation, and all other claimants to water rights in the Gila River System and Source as Real Parties in Interest, Respondents.
CourtArizona Supreme Court
F. Henry Habicht II, Asst. Atty. Gen. by Thomas H. Pacheco, Steven E. Carroll, Dirk D. Snel, Washington, D.C., for petitioner United States

Sparks & Siler, P.C. by Joe P. Sparks, E. Dennis Siler, Kevin T. Tehan, Scottsdale, for petitioners San Carlos Apache Tribe, Tonto Apache Tribe.

Evans, Kitchel & Jenckes by Alvin H. Shrago, Phoenix, for respondent Phelps Dodge Corp.

John S. Schaper, Phoenix, for respondent Buckeye Irrigation Co.

Bill Stephens, P.C. by Bill Stephens, David A. Pennartz, Bradford T. Brown, Phoenix, for respondents Cities of Phoenix, Scottsdale, Mesa, Tempe, Glendale, Peoria, Chandler, Goodyear and Gilbert.

Lee, Theisen & Eagle by David W. Eagle, Phoenix, for respondent Smith.

Robert K. Corbin, Atty. Gen. by Russell A. Kolsrud, Jon K. Wactor, Phoenix, for respondent State of Arizona, Arizona State Land Department.

Jennings, Strouss & Salmon by M. Byron Lewis, John B. Weldon, Jr., Jon L. Kyl, Mikel L. Moore, Phoenix, for respondent Salt River Water Users Association.

Richardson & Mortensen by Irval L. Mortensen, Safford, for various respondents.

Navajo Nation Department of Justice by John A. MacKinnon, Window Rock, for amicus curiae Navajo Nation.

FELDMAN, Justice.

The United States, the San Carlos Apache tribe, and the Tonto Apache tribe (petitioners) bring these consolidated special action petitions challenging the jurisdiction of the courts of this state to adjudicate petitioners' claims to water rights in certain rivers. They attack, as well, the procedures adopted by the Arizona legislature for adjudication of such claims.

The petitions arise out of proceedings pending before the superior court of Maricopa County entitled: "In re the General Adjudication of All Rights to Use Water in the Gila River System and Source, Maricopa County W-1 though W-4 (Consolidated)." The proceeding is a consolidated action Petitioners made appropriate motions for dismissal of the action on jurisdictional and constitutional grounds. The respondent trial judge denied these motions. Petitioners seek review through these special action proceedings. 1 In essence, petitioners claim that the respondent trial judge is proceeding with the action in excess of or without jurisdiction, so that special action relief is appropriate. Rule 3(b), Ariz.R.P.Sp.Act., 17A A.R.S.

to adjudicate all rights to water within the watersheds of the Salt, Verde, Upper Gila, and San Pedro rivers.

SPECIAL ACTION RELIEF

We note, at the outset, that relief by way of special action is not available where there is an adequate remedy by appeal. Rule 1(a), id. Arizona procedure does not, however, provide for appeal of interlocutory or intermediate orders. See 4 Am.Jur.2d, Appeal and Error, § 50 n. 17. For these reasons and because relief by special action is largely discretionary, we follow a general policy of declining jurisdiction when relief by special action is sought to obtain review of orders denying motions to dismiss or for summary judgment. We have no inclination to provide a special method of interlocutory appeal from such orders through grant of special action petitions, and we lack the capacity to handle the response that such an invitation undoubtedly would engender. In our view, appeal after judgment usually is an adequate remedy if the trial court has erred on the law in denying motions to dismiss or for summary judgment.

This case is the exception that proves the general rule. We deal here with questions of adjudication and quantification of water rights--one of the most important issues conceivable in an arid state such as Arizona. The questions presented are pure issues of law which can be decided as well at this stage of the case as after the evidence has been taken. The case has been pending more than ten years and may well take another twenty for decision. Approximately 80,000 claimants have been served in this and other cases brought under the same statute; the other cases are currently pending in our trial courts. In cases of this magnitude, the interests of all parties and of the public demand that serious questions of law pertaining to both jurisdiction and constitutionality of the procedure adopted by the legislature be decided by this court and settled at the earliest possible moment. We therefore accept jurisdiction of the petitions for special action and proceed to consider the issues raised in the petitions.

FACTS
1. The Parties

Both the San Carlos and Tonto Apache tribes are tribes of Indians organized pursuant to § 16 of the Indian Reorganization Act of 1934. 25 U.S.C.A. § 476 (1983). While the Tonto tribe is quite small, the San Carlos tribe is composed of approximately 8,000 members occupying a reservation of over two million acres in east central Arizona. Both tribes claim water from the Gila River watershed, including claims to the main stream of the river and some of its tributaries, such as the San Carlos, Black, Salt, San Simon, San Francisco, and Verde rivers, together with various creeks and other streams. The United States has claims to water rights in the Gila River watershed by reason of its status both as an owner of land within the watershed and as a trustee for Indian water rights. The respondent real parties in interest also claim various rights to the use of water within the watershed. Since much of Arizona is arid desert land without sufficient water to meet all demands, the claims of the petitioners and of the real parties in interest inevitably conflict.

2. Historical Background

Neither the issues presented nor the conflict between the parties can be understood In the scheme of priorities, the claims of the federal government (based on its vast holdings of national forests, military reservations, and recreational areas) and of the Indians rank high. While the amount of water actually used by these entities may have been negligible until recent times, the magnitude of the right to use water on these lands has been far from negligible. In Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908), the Supreme Court recognized that Indian reservations and their inhabitants had an implied right to the amount of water reasonably necessary to fulfill the purposes for which the reservation was created. As a result of the recognition of these Winters rights in desert areas such as Arizona, the federal government's water claims, including its claims as trustee for the Indians, "inescapably vie with other public and private claims for the limited quantities to be found in the rivers and streams." United States v. New Mexico, 438 U.S. 696, 699, 98 S.Ct. 3012, 3013, 57 L.Ed.2d 1052 (1978). Where the water from a particular river or watershed has been fully appropriated, the federal rights necessitate a "gallon-for-gallon reduction in the amount of water available for water-needy state and private appropriators." Id. at 705, 98 S.Ct. at 3016.

or decided without some appreciation of the historical background and the present crisis. We take note that the current state of our water supply is critical. Water usage in Arizona exceeds available surface supply by three-fold in average years and by more in dry years, with the shortfall made up by pumping groundwater. We also take notice of the depletion of the available groundwater supply. Concern about the threat posed by this depletion led our legislature to adopt a comprehensive groundwater management law that gradually constricts groundwater withdrawals. See A.R.S. §§ 45-401 to 45-637. Since the amount of surface water available is insufficient to satisfy all needs, and since Arizona follows the doctrine of prior appropriation (Bristor v. Cheatham, 75 Ariz. 227, 255 P.2d 173 (1953)), it is unavoidable that the priority claims of large users will reduce, if not eliminate, the amount of water available to some of those with lower priority.

The problem, therefore, is clear. Since 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. Obviously, such a task can be accomplished only in a single proceeding in which all substantial claimants are before the court so that all claims may be examined, priorities determined, and allocations made. This procedure cannot be undertaken if federal water claims, especially those of the Indians, must be excluded from the proceeding. In the past, however, such exclusion was unavoidable for two reasons. First, the United States and the Indian tribes were entitled to the benefit of the doctrine of sovereign immunity and could not be joined as parties without their consent. Second, most of the states of the desert West were formed and admitted to the union pursuant to congressional enabling acts which were construed to prohibit the state and its courts from asserting claims over Indian property or reservations. An additional impediment exists because many states were required by enabling acts to include disclaimer provisions in their state...

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