# Appendix — Cherry v. Steiner > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1400%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1984 - **Citation:** 466 U.S. 931 ## Text } PILED | 83-1327 FEB 20 1904 ALEXANDER L. STEVAS. CLERK No. 83- IN THE SUPREME COURT OF THE UNITED STATES October Term, 1983 CLIFTON N. CHERRY, et ux., et al., Petitioners v. WESLEY E. STEINER, et al. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT APPENDICES Daniel J. McAuliffe Mark Wilmer Robert B. Hoffman SNELL & WILMER 3100 Valley Bank Center Phoenix, Arizona 85073 Attorneys for Petitioners Appendix A - Appendix B - Appendix C - Appendix D - APPENDICES TABLE OF CONTENTS Opinion of the United States Court of Appeals for the Ninth Circuit............... Opinion and Order of the United States District Court for the District of PN scintssisidecusadtssdieensnaousnabaacuidais Order of Court of Appeals On Petition FF CITI ccditviccosnsncinnetisnscvcenisircbenaies The 1980 Arizona Groundwater Man- agement Act (including 1981 Amend- APPENDIX A - OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT A-| UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CLIFTON N. CHERRY, et ux., et al., Plaintiffs- No. 82-5765 Appellants, D.C. Civ. No. i |. 81-719-PHX WESLEY E. STEINER, Et al. OPINION Defendants- Appellees Appeal from the United States District Court for the District of Arizona Honorable C.A. Muecke, Presiding Argued and Submitted: May 11, 1983 BEFORE: PECK,.* FLETCHER, AND PREGERSON, Cir- cuit Judges. FLETCHER, Circuit Judge: Various Arizona landowners appeal an order of the dis- trict court granting summary judgment for defendants in a suit challenging the constitutionality of the Arizona Ground- water Management Act of 1980 (the Act), Ariz. Rev. Stat. Ann. §§ 45-401 to 45-637 (West Supp. 1982). Plaintiffs’ cen- tral contention is that prior to the enactment of the Act, *Honorable John W. Peck. Senior United States Circuit Judge for Sixth Circuit, sitting by designation. A-2 they owned the groundwater beneath their property and that the Act’s imposition of conditions upon and enjoyment of that groundwater is constitutionally infirm. We have juris- diction under 28 U.S.C. § 1291 (1976) and affirm. Plaintiffs are several married couples, two corporations, and a private water company. All own land in the State of Arizona within the Upper Aqua Fria Subbasin of the Pres- cott Initial Active Management Area. They allege that there are substantial quantities of groundwater beneath their sev- eral properties and that the Act has diminished the value of the land by taking their ownership in the water without compensation. They further allege that the Act establishes arbitrary classifications which are not rationally related to the goals of the legislation, that the law contains impermis- sible irrebuttable presumptions, and that the legislation is void for making an impermissible reference to certain extrinsic documents not in existence at the time of enact- ment of the Act. They seek to enjoin State officials from enforcing the statute and quieting title in their names to the groundwater underlying their properties. The defendants are Wesley E. Steiner, Director of the Ari- zona Department of Water Resources, who is charged with enforcement of the Act, and other public officials responsible for the filing of maps, that designate the groundwater man- agement areas established by the legislation. In response to the complaint, the defendants deny that the statutory scheme offends any consitutional provisions or makes any impermissible extrinsic reference. They assert that the law is the result of a valid exercise of the State’s police power. They specifically deny that the plaintiffs have any ownership interest, according to Arizona law, in percolating ground- water underlying their realty. The district court exercised jurisdiction under 28 U.S.C. § 1331 (Supp. IV 1980). Upon cross-motions for summary judgment, the district court determined that there were no A-3 issues of disputed fact and granted defendants’ cross-motion for summary judgment. Plaintiffs took this timely appeal. We are indebted to the district court for its careful exposi- tion of the Arizona statutes and case law in respect to rights in groundwater. 543 F.Supp. 1270 (D. Ariz. 1982). We find the district court’s analysis persuasive and in most respects adopt the opinion of the district court as the opinion of this court. See, e.g., Pfizer Inc. v. International Rectifier Corp.., 685 F.2d 357, 358 (9th Cir. 1982). We find it necessary to address only the following issues in greater detail: (a) whether the Supreme Court's dismissal of the appeal in Chino Valley v. Prescott, 457 U.S. 1101, 102 S.Ct. 2897, 73 L.Ed.2d 1310 (1982), dismissing appeal from 131 Ariz. 78, 648 P.2d 1324 (1981) (Chino Valley 11), forecloses the con- stitutional challenges raised in this case; (b) whether the dis- trict court improperly relied on the law of states other than Arizona and other sources in determining the plaintiffs’ con- Sstitutionally protected property rights; and (c) whether the Act is void for having made an improper reference to extrin- sic documents. We examine these issues in turn. A The defendants assert that most of the issues plaintiffs raise have been decided against them by the United States Supreme Court in Chino Valley Il. In Chino Valley II, the Supreme Court summarily dismissed an appeal from the Arizona Supreme Court for “want of a substantial federal question.” 457 U.S. at 1101, 102 S.Ct. at 2898. The Arizona Supreme Court affirmed the denial of an injunction to pre- vent the City of Prescott from withdrawing water from under its land and transporting it elsewhere. As part of its holding it sustained the constitutionality of the Act. See 131 Ariz. at 82, 638 P.2d at 1328. The defendants contend that the Supreme Court’s summary dismissal of the appeal from the decision constitutes a decision by the Court that the Act is in all relevant respects constitutional and that that deci- A-4 sion is binding on this court as to each of the constitutional claims raised here. We disagree. A party challenging the constitutionality of a state statute in state court may appeal an adverse holding as of right to the Supreme Court of the United States. See 28 U.S.C. § 1257(2) (1976). If the Supreme Court grants plenary review of the state court decision, the decision the Court makes as to the constitutionality of the statute is, of course, binding on this and every other court in the land. See United States ex rel. Lawrence v. Woods, 432 F.2d 1072, 1075-76 (7th Cir. 1970). Even a summary disposition by the Supreme Court can have such binding effect but only if the issue was (1) ac- tually decided in the state court, (2) necessary to the state court’s decision, (3) presented in the jurisdictional state- ment, and (4) necessarily decided by the Court in making its summary disposition. See, ¢.g., Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 2240, 53 L.Ed.2d 199 (1977): Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). We agree with appellants that the district court should have determined whether any of the constitutional issues raised in this case were addressed in Chino Valley 11 and, if so, whether under Mandel, they were decided by the Court. We conclude, however, that the district court's failure to consider the extent to which Chino Valley 11 constituted a binding precedent does not require reversal. Our indepen- dent examination persuades us that none of the.constitu- tional issues raised in this case, whether or not they were addressed in Chino Valley 11, meet all four Mandel criteria. We first consider the procedural posture in which the rele- vant issues were raised in Chino Valley II. In Chino Valley II, the Town of Chino Valley and others sought to enjoin the City of Prescott from withdrawing huge quantities of water from the acquifer beneath land Prescott owned in Chino Valley and from pumping it to customers 17 miles away in Prescott. 131 Ariz. at 79, 638 P.2d at 1325. Prescott moved for dismissal on the ground that Ariz. Rev. Stat. A-5 § 45-541(A) authorized it to withdraw groundwater and transport the water to its customers. /d. at 680, 638 P.2d at 1326. The trail court granted the motion, but gave leave to plaintiffs to amend their complaint to pray for damages. /d. Chino Valley did not amend but instead appealed, asserting that the Act was unconstitutional. /d. The Arizona Supreme Court affirmed the dismissal of the injunction. The court went on to state that “appellants” posi- tion that the 1980 Act violates the Fifth and Fourteenth Amendments .. . as a taking of private property without due process of law and just compensation cannot be sustained.” 131 Ariz. at 82, 638 P.2d at 1328. It is unclear why the Ari- zona court reached out for the constitutional issues since the trial court had limited its order to a denial of the injunction and specifically authorized an amendment of the complaint to pray for damages. The plaintiffs in Chino Valley 1] then appealed to the United States Supreme Court, raising in the jurisdictional statement not only the issues addressed by the Arizona Supreme Court, but also new ones. With this background in mind, we proceed to apply the Mandel criteria to Chino Valley 11. The only legal issues that were necessary to the Supreme Court’s summary dismissal were the federal constitutional issues, for it is only as to those issues that the Chino Valley appellants had a right of appeal to the Supreme Court. See 28 U.S.C. § 1257(2) (1976). Moreover, the only federal constitutional issues that the Arizona Supreme Court itself purported to decide were whether the Act violated the due process clause of the four- teenth amendment and whether the Act violated the takings clause of the fifth and fourteenth amendments. See 131 Ariz. at 82, 638 P.2d at 1328. Both of these issues were presented to the Supreme Court in the jurisdictional statement in Chino Valley 11. Although the issue of the overall constitutionality of the Act under the due process and takings clauses therefore meets three of the four Mandel criteria, it fails to satisfy the second, but perhaps most significant, criterion: to wit, that A-6 the issue be necessary to the state court decision. This crite- rion requires us to look behind what the Arizona Supreme Court said in Chino Valley II to determine what actually was necessary to the decision. See Kastigar v. United States, 406 U.S. 441, 454-55, 92 S.Ct. 1653, 1661-1662, 32 L.Ed.2d 212 (1972) (“broad language . . . unnecessary to the Court’s decision . . . cannot be considered binding authority”). In’ considering the state court opinion, we are not free, of course, to craft a different analysis by which the state court could have resolved the case before it, but for whatever rea- sons chose not to use. Nonetheless, we must carefully deter- mine exactly what the state court necessarily decided in order to dispose of the particular case before it and what, being unnecessary to the disposition at hand, was in reality mere obiter dictum. In Chino Valley II, as we have explained, the plaintiff sought only injunctive relief in its complaint. The suit was not one for a declaratory judgment regarding the constitu- tionality of the Act. Nor did the plaintiff seek to recover damages were the requested injunction to be denied. Thus, despite the broad statements of the Arizona court in its opinion, the only question necessary to the court’s disposi- tion of the case was whether a refusal to grant prospective relief against persons withdrawing and transporting water pursuant to the Act violated due process or effected a taking. Since the district court’s denial of an injunction did not pre- clude Chino Valley from recovering damages, affirmance of that denial required nothing more than a determination that refusing to provide injunctive relief from the Act was con- stitutional. Any broader holding as to the constitutionality of section 45-541(A) of the Act (which provides, inter alia, that groundwater withdrawn under certain circumstances may be transported without payment of damages) under the takings and due process clauses was thus not necessary to the disposition of Chino Valley I]. For this reason, the Supreme Court’s summary dismissal for want of a substantial federal question in Chino Valley Il is not binding as to the issues raised in the declaratory judg- A-7 ment action before us. Accordingly, the district court was correct in dealing with the merits of the constitutional chal- lenges presented in this case. The plaintiffs assert that the judgment of the district court should be reversed because the district court erroneously relied on principles of logic and the property rules of other jurisdictions to decide what federally protected rights Ari- zona property owners had prior to the enactment of the Groundwater Management Act of 1980. We cannot agree. The due process and takings clauses of the United States Constitution protect “property” rights created by an independent body of law, usually state law. Paul v. Davis, 424 U.S. 693, 710-11, 96 S.Ct. 1155, 1164-1165, 47 L.Ed.2d 405 (1976): see Parratt v. Taylor, 451 U.S. 527, 529 n.1, 101 S.Ct. 1908, 1910 n. 1, 68 L.Ed.2d 420 (1981). In this case, then, a crucial question is the extent of the property rights to groundwater possessed by Arizona landowners under Ari- zona law prior to the enactment of the Act. In making this determination the district court relied pri- marily on the Arizona Supreme Court's exposition of Arizona groundwater rights in Chino Valley II, 131 Ariz. 78, 638 P.2d 1324 (1981), appeal dismissed, 457 U.S. 1101, 102 S.Ct. 2897, 73 L.Ed.2d 1310 (1982). See 543 F.Supp. at 1277.' After correctly concluding that the Act did not unconstitutionally deprive landowners of their property rights described in Chino Valley II, the district court then proceeded to consider whether the description of property rights in the Chino Valley I] decision was itself “a radical departure from prior law [that did] violence to [the land- owners’] property rights.” 543 F.Supp. at 1277. This was a completely appropriate question to consider, for a state can- ' In that case, the Arizona court stated that “there is no right of owner- ship of groundwater in Arizona prior to its capture and withdrawal from the common supply and that the right of the owner of the overlying land is simply to the usufruct of the water.” Chino Valley 11, 131 Ariz. at 82, 638 P.2d at 1328. A-8 not validly effect a taking of property by the simple expedi- ent of holding that the property right never existed. Hughes v. Washington, 389 U.S. 290, 296-97, 88 S.Ct. 438, 442-443, 19 L.Ed.2d 530 (1967) (Stewart, J., concurring); see Demorest v. City Bank Farmers Trust Co., 321 U.S. 36, 42-43, 64 S.Ct. 384, 388-389, 88 L.Ed. 526 (1944); Chicago, Burlington & Quincy R.R. Co. yv. Chicago, 166 U.S. 226, 241, 17 S.Ct. 581, 586, 41 L.Ed. 979 (1897). In deciding that the Chino Valley II decision marked no radical change in Arizona rules of property, the court examined Arizona cases prior to Chino Valley II, “the experience of other states,” and principles of “logic.” 543 F.Supp. at 1277-78. We have examined the Arizona cases and agree with the district court that Chino Valley 1] was not a “startling” and “unpredictable” change in Arizona property law, if it repre- sents any change at all. ? We do not read the district court's reference to the practice in other states and to logic to serve other than as a means of more fully understanding the rules that had been established under prior Arizona decisional law. Cc Finally, the plaintiffs urge us to reverse the judgment below on the ground that the Act made an invalid reference to extrinsic documents thereby voiding the entire bill and that the district court improperly applied the enrolled bill doctrine to preclude an inquiry into the alleged flaw. Although we conclude that the enrolled bill doctrine was improperly applied in this case, we agree with the district 2 The question of constitutionality of the Chino Valley I] decision was raised in the jurisdictional statement before the Supreme Court. However. since the issue was not one of the validity of a statute under the Constitu- tion but one of the validity of a court decision under the Constitution, the question was in the court's discretionary jurisdiction. See 28 U.S.C. § 1257(3) (1976). We consider it, like the other issues raiséd here, as having been left unaddressed by the Court in the summary dismissal. A-9 court that the Act does not suffer the defect alleged by the appellants. * Arizona has adopted the common law rule that a statute is void if its meaning depends on a document not part of the statute, which document does not exist at the time of the enactment of the statute, unless the statute contains a proper delegation of authority to a designated agency. See State Compensation Fund vy. de la Fuente, 18 Ariz. App. 246, 251, 501 P.2d 422, 427-28 (1973); see also State ex rel. Weiks v. Tumwater, 66 Wash.2d 33, 34-35, 36, 400 P.2d 789, 791-92 (1965), In this case, nearly all of the provisions of the Act apply to what are designated as “active management areas.” Initial active management areas are defined in Ariz. Rev. Stat. Ann. § 45-41 1(A), but the definition is simply in terms of “the maps filéd in the Office of the Secretary of State on the effective date of this [Act].” Ariz. Rev. Stat. Ann. § 45-411(B) (West Supp. 1982). The Act does not delegate authority to anyone to designate the initial active manage- ment areas. Therefore. if on the date of enactment of the Act the maps were not in existence and on file in the Office of the Secretary of State, much if not all of the Act would be void under Arizona law. ¢ The district court did not address plaintiffs’ argument on the merits. Rather, the court simply concluded that the enrolled bill doctrine, which “precludes judicial inquiry from going behind the legislation to examine the circum- stances under which it was passed,” prohibited the court “from inquiring into the manner in which the [Act] was enacted.” 543 F.Supp. at 1279. This was error. While the enrolled bill rule fully applies to challenges raised against the validity of an Arizona statute, Hernandez 3 Although this issue is one of state law, it must be addressed since it could avoid the need to address the federal constitutional issues. See Schmidt v. Oakland Unified School District, 457 U.S. 594, 595 (1982). ‘ That maps may now be on file is irrelevant to this question. The Ari- zona legislature intended, indeed explicitly provided, that the areas be defined by maps “in the Office of the Secretary on the effective date.” A-10 v. Frohmiller, 68 Ariz. 242, 259, 204 P.2d 854, 865 (1949); see also Field v. Clark, 143 U.S. 649, 672-73, 680, 12 S.Ct. 495, 497-500, 36 L.Ed. 294 (1892), it has no application to plaintiffs’ contention that the bill is void on its face under the rule of de la Fuente. The enrolled bill doctrine is intended to forestall judicial inquiry into procedural irregu- larities occuring prior to the enactment of bills, not inherent defects in bills as enrolled. The challenge here is based not on whether there was truly a vote of the majority in favor of the Act, or whether the Act was reported out of “X” com- mittee as the parliamentary rules of the Arizona legislature may require, but whether the enrolled bill, itself. is void. The bill, as enrolled, refers to certain extrinsic documents. If those documents (maps on file in a particular office) did not exist on the date of enactment, the provisions of the bill dependent on those documents are void. To determine whether the duly enrolled bill is valid, the court must look at the documents from which the enrolled bill itself purports to derive its meaning. The enrolled bill doctrine, therefore, does not foreclose our inquiry; upon inquiry, however, we conclude that the bill is valid. The plaintiffs state in their briefs that the maps describing the four initial active management areas were, in fact, on file in the Secretary's office on June 12, 1980, the date on which the governor of Arizona signed the bill into law. The landowners conceded as much at oral argument. Consequently, the bill, as enrolled, was not void for an improper reference to extrinsic documents. * 5 To the extent that plaintiffs argue that the bill was invalidly enacted because the legislature had only working copies, not final maps, before it when it voted on the bill, the challenge falls within the enrolled bill doc- trine and is not within the jurisdiction of the courts to redress. Bascd on separation of powers considerations, the doctrine precludes judicial inquiry into procedural defects that take place before the executive has signed the bill. See Field v. Clark, 143 U.S. 649, 672 (1892) (“respect due to coequal and independent departments requires the judicial department ... to accept ... all bills authenticated” by leaders of both houses and by the executive as having been validly enacted). A-I1 We affirm the judgment of the district court sustaining the validity of the Act. AFFIRMED. APPENDIX B - OPINION AND ORDER OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA B-| IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA CLIFTON N. CHERRY, et al.., Plaintiffs, No. CIV 81-719 PHX CAM VS. WESLEY E. STEINER, et al... OPINION and ORDER Defendants. With their suit, plaintiffs seek a ruling that the 1980 Ari- zona Groundwater Code violates due process and equal protection in contravention of the fifth and fourteenth amendments to the United States Const:tution. Their action prays for an order enjoining State officials from enforcing the statute and quieting title in their names to the ground- water underlying their properties. The plaintiffs are several married couples, two corpora- tions and a private water company, all of whom own land within the Upper Aqua Fria Subbasin of the Prescott Initial Active Management Area. They allege that there are sub- stantial quantities of groundwater underlying their several properties, and that the legislation has diminished the value of the land by taking their ownership in the water without compensation. They further allege that the Code establishes arbitrary classifications which are not rationally related to the goals of the legislation, that the law contains impermis- sible irrebuttable presumptions, and that the legislation was passed in a manner which constitutes an impermissible dele- gation of legislative responsibility to an unauthorized third party. The defendants are Wesley E. Steiner, Director of the Ari- zona Department of Water Resources, who is charged with enforcement of the statute, and other public officials respon- sible for the filing of maps, which designate the groundwater management areas established by the legislation. B-2 In response io the complaint, the defendants deny that the statutory scheme offends any constitutional provisions. They assert that the law is the result of a valid exercise of the State’s police power. They specifically deny that the plaintiffs have any ownership interest, according to Arizona law, in percolating groundwater underlying their realty. The lawsuit is a matter in controversy arising under the Constitution of the United States, conferring this Court with jurisdiction pursuant to 28 U.S.C. §1331. This Court is also empowered to render a declaratory judgment, if appropriate, by the parties’ invocation of 28 U.S.C. §2201. For the reasons set forth below, the Court finds and con- cludes that there are no material facts in dispute, and that the legislation is a permissible exercise of the State's police power and does not offend the Constitution. Accordingly, the defendants’ Motion for Summary Judgment is granted, while the plaintiffs’ Motion for Summary Judgment is denied. Groundwater in Arizona During the 1930's, the shortage of groundwater in the State became a matter of concern. It was not until 1948 though, that legislation was passed dealing with the prob- lem. The Groundwater Code of 1948 was promulgated under threat from the United States Department of Interior that the Central Arizona Project would not be built unless Arizona took steps to regulate its groundwater. At the time, the Code was viewed as a temporary measure. Nevertheless, with minor changes it remained the law until the 1980 law was enacted. The Code of 1948 authorized the State Land Commission to designate “critical groundwater areas,” within which there would be no further expansion of agricultural irrigation with groundwater. Existing agricultural wells were permitted to continue pumping. The constitutionality of the Code was upheld in South- west Engineering Co. v. Ernst, 79 Ariz. 403, 291 P.2d 764 B-3 (1955). In so doing, the Arizona Supreme Court rejected allegations similar to the ones that have been raised in this suit — that the 1948 Code took property without compensa- tion, was violative of equal protection and was an unauthor- ized delegation of legislative responsibilities. Previously, in a rehearing of a decision which held that all groundwater was subject to prior appropriation, the Arizona Court had reinstituted the common law rule, in holding that a landowner had the right to the reasonable use of the groundwater underlying his property. Bristor v. Cheatham, (Bristor 11), 75 Ariz. 227, 255 P.2d 173 (1953). The temporary nature of the 1948 Code was underscored in the Jarvis trilogy, which attempted mediation, among special interests for the State's finite bank of groundwater. In Jarvis v. State Land Department (Jarvis 1), 104 Ariz. 527, 456 P.2d 385 (1969), the City of Tucson was enjoined from transporting water to the city for municipal use from wells in a critical groundwater area. The injunction was modified in Jarvis 11, 106 Ariz. 506, 479 P.2d 169 (1970), so as to allow the city to purchase land within the critical ground- water area, retire the land from cultivation and irrigation, and transport groundwater from the farmlands to the municipal service area in an “amount equal to the annual historical maximum use upon the lands so acquired.” 106 Ariz. at 511, 479 P.2d at 174. Jarvis I] exemplified the flexibility in the reasonable use doctrine by permitting the transportation of groundwater off of the land from which it is pumped for beneficial use else- where. In Jarvis //1/, 113 Ariz. 230, 233, 550 P.2d 227, 230 (1976), the Court interpreted “annual historical maximum use” to mean “consumptive use,” reducing the amount available to the City of Tucson by approximately 50 percent. The transportation of mined groundwater was again addressed in Farmers Investment Co. v. Bettwy, 113 Ariz. 520, 558 P.2d 14 (1976). The court held that the doctrine of reasonable use prevented the transportation of water away from “the land from which the groundwater is being B-4 pumped,” where the supply of other groundwater users who overlie the common source of supply is being lowered and depleted. Recognizing the potential economic impact of such a decision, the opinion stated that the courts would not prefer one economic interest over another, but that “the Legislature is the appropriate body to designate when and under what circumstances such economic interest will pre- vail.” /d., 113 Ariz. at 527, 588 P.2d at 21. In its next session, the Arizona Legislature passed a bill which provided that one could file an application for a Cer- tificate of Exemption for the amounts of groundwater then being used by that person or entity. These 1977 amend- ments to the Groundwater Code of 1948 further provided that once an exemption was obtained, the transporter could transport as much water off the property as was originally being used thereon, without the threat of injunction. The transporter could be sued for damages, however, if it dam- aged other landowners who owned land over the same groundwater basin or aquifer. The 1977 amendments were challenged on the grounds that such a scheme constituted the taking of property with- out just compensation and that restriction of the remedy available violated the principle of separation of powers. These arguments were rejected and the constitutionality of the legislation was upheld in Town of Chino Valley v. State Land Department , (Chino Valley 1), 119 Ariz. 243, 580 P.2d 704 (1978). The 1977 amendments recognized the necessity of a com- prehensive overhau! of the Groundwater Code. To this end, the legislation established the Groundwater Management Study Commission and provided that this Commission would draft a recommendation which would become the State’s Groundwater Code unless the legislature passed its own bill before the end of 1981. The legislature recognized that no major legislation could be passed over the objection of any major class of water users. Consequently, the Study Commission was made up of B-5 representatives of the major types of water users: agricultural, mining, urban and Indian interests. The Com- mission held public hearings and workshops, and solicited input through mailings. The Commission developed a Draft Report, which pro- vided a _ proposal for comprehensive groundwater management. The two agricultural representatives on the Commission dissented. In light of the dissents and the objections of irrigators at the public hearings, the Commission decided to make fur- ther revisions in hopes of bringing agriculture into the group supporting the bill. Negotiations with agricultural interests were conducted, resulting in the production of “Concepts for Agreement Integrated Package.” The Commission accepted the Concepts package and, without dissent, directed the package be put into statutory language. On June 5 and 6, 1980, the Commission and both houses of the legislature held public hearings on the bill. On the 6th, the Commission recommended the amended draft to the legislature by a vote of 19 ayes, | no, and 4 abstentions. On June 9, hearings were held by committees of the joint legislature. The bill was passed by the legislature in special session on June |1, and signed into law by the Governor the next day. The Groundwater Code of 1980 The Code commences by recognizing that the people of Arizona are very dependent on groundwater as a source of their water supply. Also acknowledged are the facts that the withdrawal of groundwater is and has been in great excess of the safe annual yield and that this threatens the State's wel- fare. A.R.S. §45-401. (All subsequent references to A.R.S. sections will list only the section number.) Ae In response, the Code announces its intentions as seeking to conserve, protect and allocate groundwater and provide a framework for management and regulation of the B-6 withdrawal, transportation, use, conservation and convey- ance of rights to use the groundwater. §45-401 B. One of the principal features of the legislation is the estab- lishment of Active Management Areas (AMA), §45-402(2), which are geographic areas where groundwater supplies are imperiled. In these areas, groundwater use is subject to close scrutiny and intensified regulation. An AMA encompasses a relatively distinct hydrological body or related body of water, termed a groundwater basin or sub-basin. §45-412(B). The Code established four initial AMA’s: Tucson, Phoe- nix, Prescott, and Pinal. §45-411(A). The plaintiffs in this suit are landowners within the Prescott AMA, which includes the Little Chino and Upper Agua Fria Subbasins. Plaintiffs correctly assert that there are no administrative means for modifying the boundaries of the initial AMA’s. This was legislatively accomplished and can be modified only by the legislature. The Groundwater Code also provides for the future clas- sification of additional AMA's. §45-412. A subsequent AMA could be established only after hearings were held, and any such decision would be judicially reviewable. An elaborate system of management of groundwater in the AMA’s is established. Uses of groundwater in the areas are permitted to continue and are called “grandfathered rights.” There are three categories of grandfathered rights: irrigation rights, §45-465, Type | non-irrigation rights, §45-463, and Type 2 non-irrigation rights, §45-464. An irri- gation right is measured in acres of land which may con- tinue to be irrigated and is determined by historical use. Holders of irrigation rights are encouraged to convert their land to non-irrigation uses. §45-472. The right to use groundwater for a non-irrigation purpose by virtue of having retired irrigated land is a Type | non-irrigation right. §45-463. Type 2 non-irrigation rights are all remaining non- irrigation uses of groundwater in existence when an AMA is designated, e.g., mines, and industry. Withdrawal from B-7 domestic wells and withdrawals by cities, towns and private water companies from outside their service areas or within their service areas pursuant to a certificate of exemption is considered to be within Type 2 uses. §45-464(C). Service areas are those areas being served water by a pub- lic or private water company. §45-402 (25). Municipalities and water companies may withdraw enough water within their service areas to serve their customers, although they are restricted from extending their service areas and the types of services that they provide. §45-493(A) and (B). The Code also established two irrigation non-expansion areas, which are not subject to active management, but in which new land may not be irrigated. These areas have been determined to be capable of supporting existing irrigation uses at current rates of withdrawal, but could not safely sup- port expanded withdrawals. §45-431. Within AMA’s, the Code generally prohibits new uses of groundwater. §45-491, ef seg. While new withdrawals for domestic uses are permitted, §45-492, no additional indus- trial uses will be allowed, except where designed to require maximum conservation, §45-497. Industrial users will be required to purchase and retire irrigated lands if available. Id. Further, there is a prohibition against putting new land into irrigation with any kind of water. §45-493(C). Recognizing that grandfathered rights or the purchases from water comipanies within service areas may not provide sufficient water, a system for obtaining permits to withdraw additional quantities of water has been established. §45-512-19. The permits may be issued only for limited pur- poses and after certain requisites have been satisfied. The Code contains strong management tools. Subdivided lands within an AMA may be sold only after the developer has demonstrated that there is sufficient water to satisfy the needs in the subdivision for the next 100 years. §45-576. In addition, a subdivider must show that the projected water use is consistent with the management plans for the AMA, which have been established by the Director of the Depart- B-8 ment of Water. Jd. The assurance of a supply of water need be demonstrated despite the fact that the subdivision will be served by a water company, although if the subdivision is to receive Central Arizona Project water, the director may deem the water assurance requirement met. §45-576(E). The problem of transportation of groundwater has also been addressed by the legislation. In Farmers Investments, 113 Ariz. 529, 558 P.2d 14 (1976), the Arizona Supreme Court held that the City of Tucson and Anamax Mining Company could be enjoined from withdrawing groundwater from lands that they owned and transporting the water to land other than from which the waters are taken. However, the Code permits such transportation of amounts of water equal to the historical use. The new law does recognize the reasonable use doctrine and provides that if such mining and transportation does lower the water table so as to diminish the water available to another landowner whose land overlies the common water table, the transporter is subject to damages. §45-544(2). While transportation of groundwater is regulated from areas both within and with- out AMA’s, transportation from within AMA’s is regulated more strictly and depends upon the use for which the water is intended and the type of water rights possessed by the party withdrawing the groundwater. §§45-541-44. Chapter | of the groundwater legislation creates the Department of Water Resources, §45-102, within which is the Arizona Water Commission. §45-121. The director of the department succeeds to the power previously held by the Groundwater Commission. Presently, the director is Wesley Steiner, a defendant in this suit. The director is required to promulgate and implement groundwater management plans. The Code provides for five management periods: four, ten-year periods and one, five-year period. §§45-564-68. The director is to develop a plan for each AMA for each period. In successive periods, the conservation requirements become progressively more stringent. Throughout the course of the management program, groundwater use is to be cur- B-9 tailed through the imposition of irrigation water duties, §45-402. and increased conservation by cities and industry. §45-544-68. Management programs in the future provide for augmen- tation of water in each AMA and the imposition of withdrawal fees on users. /d. Further, the State will be allotted funds for the purchase and retirement of grand- fathered irrigation rights and will exercise contro! over the location or redrilling of wells. /d. In summary, probably the biggest innovation in the Code is the establishment of AMA's. Previous water uses are per- mitted to continue although through a series of controls and regulation, increased use is prohibited, and users are encour- aged to convert land to uses less dependent on groundwater. Transportation of groundwater and alienation of water rights are dealt with in a manner that also encourages con- servation and putting groundwater to its most efficient use. The Code creates a state agency charged with the manage- ment of groundwater in Arizona. The Cross-Motions for Summary Judgment The parties have filed Cross-Motions for Summary Judg- ment. They allege, and the Court agrees, that there are no issues of disputed fact. Plaintiffs seek a determination that the Code is unconstitutional on the grounds that the legisla- tion constitutes a taking of property without just compensa- tion, that it contains impermissible irrebuttable presumptions, that its classifications violate the equal protection clause, and that the Code makes an impermis- sible delegation of legislative power to an unrestrained third party. Plaintiffs further seek an order quieting title in the groundwater underlying their properties. With their motion, the defendants seek a ruling that the legislation is constitutional and was a valid exercise of the State's police powers. B-10 DUE PROCESS TAKING The principal argument advanced by the plaintiffs is that the Code takes their property without due process of law. This argument is premised upon the assumption that a land- owner owns the groundwater that underlies his property. Plaintiffs argue that the imposition of any conditions upon their use and enjoyment of their groundwater by state action is constitutionally infirm. The death knell for this argument sounded after this suit was filed, when the Arizona Supreme Court announced its decision in Town of Chino Valley v. City of Presoctt, 13) Ariz. 78, 638 P.2d 1324 (1981), appeal dismissed. US., , 102 S.Ct. 2897, 73 L.Ed.2d 1310 (1982). That case, Chino Valley II, raised essentially the same issues that have been presented to this Court. Most importantly, the decision explicitly held that there is no right of ownership in groundwater prior to its capture. A landowner whose land overlies groundwater has only the right to use of the water, but maintains no proprietary interest in the actual water. 131 Ariz. at 82, 638 P.2d at 1328. Federal courts look to state law for the definition of prop- erty rights. 28 U.S.C. §1652. Additionally, a federal tribunal, when interpreting state law is bound by the interpretation of the law by that state’s courts. Erie Railroad Company v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). The Arizona Supreme Court has stated that there is no propriety interest in percolating groundwater. That court has further declared that any language in previous decisions, which suggested that there was a property interest in ground- water, was only dicta. 131 Ariz. at 81, 638 P.2d at 1327. The only interpretation of Arizona law open to this Court is that a landowner has no interest in underlying ground- water prior to its capture. Without an interest in the per- colating water, the plaintiffs may not assert a wrongful taking of their property; Chino Valley 11 emasculates their due process argument. B-11 The plaintiffs have attempted to circumvent the impact of Chino Valley II by alleging that the Supreme Court’s deci- sion, itself, has unconstitutionally destroyed property rights. They rely on some old case law for the proposition that when a court decision works an unpredictable change in state law, this gives rise to a federal question as to whether the court has impermissibly taken property without due pro- cess. Chicago B. & Q. R. Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1896); Pease v. Peck, 59 U.S. (18 How.) 595, 15 L.Ed. 518 (1855). Plaintiffs allege that previous Arizona decisions have established a landowner’s proprietary interest in the ground- water underlying the property e.g., Howard v. Perrin, 8 Ariz. 347, 76 P.2d 460 (1904), aff'd. 200 U.S. 71 (1906). They argue that the Chino Vallev I] decision was a radical depar- ture from prior law and thus does violence to their property rights. “ This argument must fail for several reasons. Initially, the status of the law in Arizona regarding groundwater as pri- vate property was not as clear as the plaintiffs would have this Court believe. In Southwest Engineering Company v. Ernst, 79 Ariz. 403, 291 P.2d 764 (1955), the Arizona Supreme Court analyzed its prior decisions dealing with groundwater, including Southwest Cotton, supra, and Bristor I], supra, cases upon which the plaintiffs base their conten- tions of proprietary rights in groundwater. The Ernst court found that while prior decisions may have decided that landowners had an interest in water underlying their property, that those cases dealt only with disputes between individuals and that “the question was left open as to the right of the state against individuals to regulate the con- sumption of water in the interest of the general welfare.” 79 Ariz. at 408, 291 P.2d at 767. Recognizing the weighty pub- lic concern over the depletion of groundwater sources, the Ernst court concluded by stating: “we cannot say that the exercise of such choice, controlled by considerations of social policy which are not unreasonable, involves a denial of due process.” 79 Ariz. at 410, 291 P.2d at 769. In ren- B-12 dering its decision, the Court in Ernst rejected a due process taking argument similar to this one. Besides recognizing that the future use of groundwater was a matter of legislative concern, the decisions upon which the plaintiff rests are not as unequivocal as plaintiffs’ protests. One of the state’s preeminent authorities on water law has stated this about the Bristor 1] decision, Bristor did not accept the doctrine of ‘absolute own- ership,” and appropriation theory was expressly rejected by the court on rehearing. The court distinguished cor- relative rights doctrine and put it aside in favor of ‘reasonable use’ doctrine, which in operational terms includes exercise of the state’s police power. .. . Clark, R.E., Groundwater Management Law and _ Local Response, 6 Ariz. L. Rev. 178, 197 (1964-65). In the Bristor I] decision, the Court also recognizes that the overlying owner's right is to the use of the water, not the water itself. 75 Ariz. at 234, 255 P.2d at 180. Not only is the plaintiffs’ reliance upon selected passages of Arizona case law misplaced, the plaintiffs, in asserting an absolute right to ownership of groundwater, ignore the actions of legislatures and courts throughout the country. Water, particularly in the West, is becoming increasingly in demand and valuable. Recognizing the potential public shortages of water, legislatures, through the use of their police power, have passed legislation restricting private use. This Court is unaware of any such police power actions which have been found unconstitutional. ' Finally, the plaintiffs’ assertions of ownership of per- colating groundwaters must fail on the basis of logic. ' See Crookston Cattle Co. v. Minnesota Department of Natural Resources, 300 N.W. 2d 769, 774 (Minn. 1980); Village of Tequesta v. Jupiter Inlet Corp., 37\ So. 2d 663, 670 (Fla. 1979), cert. denied, 444 U.S. 965 (1979), Baeth v. Hoisveen, 157 N.W. 2d 728, 732 (N.D. 1968), Wil- liams v. City of Wichita, 190 Kan. 317, 374 P.2d 578 (1962), appeal dis- missed, 375 U.S. 7 (1963). B-13 Groundwater is “water under the surface of the Earth regardless of the geological structure in which it is standing or moving. It does not include water flowing in underground streams with ascertainable beds and banks.” §45-101(4). Groundwater knows no boundaries and may flow under the land of several landowners. It would be impossible to accord to each overlying landowner the right to the underlying, per- colating water, as withdrawal by one owner necessarily inter- feres with the enjoyment of the like privilege of other owners. Plaintiffs’ claims of an unconstitutional taking of their property is based upon a misreading of Arizona law. Fur- thermore, the claim ignores the experience of other states and is logically unsound. The State has the power, within constitutional limitation, to impose such restraints upon pri- vate rights as are necessary for the common good. IRREBUTTABLE PRESUMPTION The plaintiffs also argue that the legislation establishes irrebuttable presumptions in its categorization of Active Management Areas (AMA's) and is thus violative of due process. They note that the legislation contains no explana- tion as to why the four AMA’s were so designated. They point out that in order to designate a subsequent AMA, the State would need to make certain findings and hold hear- ings. Plaintiffs reason that because the legislation contains no findings in regard to the initial AMA’s, that this denom- ination constitutes an irrebuttable presumption. While it is true that the new statute itself is silent as to the basis for the AMA designations, the legislative history is full of support for this legislative categorization. Initially, it need be noted that the four initial AMA’s account for 69 percent of the total groundwater overdraft in the state and include 80 percent of the State’s population. Looking toward the future, the State expects its largest population increases within these areas. Despite such solid factual footing, the Code cannot be threatened by an irrebuttable presumption argument, as this B-14 doctrine is probably no longer viable in this circuit, deLaurier v. San Diego Unified School District, 588 F.2d 674, 683, n. 16 (9th Cir. 1978). Additionally, the doctrine never applied to legislative decisions regulating the private sector of the economy. Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975); Mourning v. Family Pub- lication Service, Inc., 411 U.S. 356, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973). Although plaintiffs argue irrebuttable presumption, their lack of a reply to the defendants’ reference to these cases seems to recognize the inevitable failure of such position. DELEGATION OF LEGISLATIVE AUTHORITY It is next alleged that the legislature abdicated its non- delegatable responsibility, when it enacted legislation which incorporated maps of the four initial AMA's, which had not yet even been prepared. Plaintiffs argue that the legislature and the Governor could not have had any idea of what they were enacting if they did not have these maps before them at the time of their respective acts. Further, plaintiffs con- tend that it is an impermissible delegation of the legislative responsibility to permit an unauthorized third party, the State Water Commission, to prepare such a critical part of the legislation. The defendants respond by avowing that the legislature and the Governor were working from smaller, more com- pact maps, with the identical boundaries as set forth on the maps later filed with the Secretary of State. Regardless of the situation, such inquiry by a court is pro- hibited by the Enrolled Bill Doctrine. This policy precludes judicial inquiry from going behind the legislation to exam- ine the circumstances under which it was passed. See e.g., Field v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294 (1892). Arizona courts have also recognized that the separa- tion of powers doctrine, and the respect the judiciary should give to the enactments of a coordinate branch of govern- ment, prevent them from examining alleged procedural B-15 defects or irregularities in the passage of legislation. Hernan- dez v. Frohmiller, 68 Ariz. 242, 204 P.2d 854 (1949). The Enrolled Bill policy prevents this Court from inquiring into the manner in which the Code was enacted. DUE PROCESS AND EQUAL PROTECTION Plaintiffs have alleged that a variety of provisions of the Code are arbitrary and not rationally related to legitimate legislative goals, rendering the legislation violative of the equal protection and due process clauses. Legislative acts adjusting the burdens and benefits of eco- nomic life come to the courts with a presumption of constitutionality. //odel v. Indiana, 452 U.S. 323, 101 S.Ct. 2376, 2382, 69 L.Ed. 2d 4 (1981). Plaintiffs have the burden of overcoming this burden. They must establish that the leg- islature’s classifications are purely arbitrary and not ration- ally related to a legitimate legislative purpose. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976). The plaintiffs attack on the Code is broad-based. They argue that the classification of certain areas as AMA’s is dis- criminatory, that the boundaries for these areas are not rationally justifiable, and that the distinctions drawn between different types of water users is irrational. Plaintiffs contend that there is no justification for distinction between private and public water companies, or between mining and other industrial use permits. They allege that the implemen- tation of irrigation water duties will discriminatorily impact upon them. It is not this Court's task to weigh the wisdom of the leg- islature’s work. Whether a more attractive alternative exists is not of concern, but only whether there exists a rational basis for the Code’s provisions. For each and every sugges- tion of constitutional infirmity made by the plaintiff, the defense has provided a rational explanation for that provi- sion. B-16 The designation of Active Management Areas was based upon the recommendation of the Arizona water commission that these areas required active management so as to meet a goal of safe-yield. The commission held public hearings and solicited public input through mailings. It considered the works and opinions of experts in the fields of demography and hydrology. It established four AMA's which account for 69 percent of the State’s groundwater overdraft and 80 per- cent of the State’s population. The three AMA's with safe yield goals account for 45 percent of the overdraft and 77 percent of the population in Arizona. The Arizona Depart- ment of Economic Security has forecasted that the State's population will explode most profoundly in the area encom- passed by the Phoenix, Tucson and Prescott AMA's. Pursuant to the 1948 Groundwater Code, ten Critical Groundwater Areas were designated. Every previously desig- nated Critical Groundwater Area was included in either an AMA or an Irrigation Non-Expansion Area under the new Act. The Arizona Supreme Court found that the establish- ment of Critical Groundwater Areas was constitutional in Southwest Engineering Co. v. Ernst, 79 Ariz. 403, 412, 291 P.2d 764, 770 (1955), under a similar constitutional analysis. The defendants have documented the existence of a sound hydrological basis for the boundaries which establish AMA’s. In any case, the equal protection clause does not apply to the differing treatment accorded geographical areas. McGowan v. Maryland, 366 U.S. 420, 427, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961). The plaintiffs claim that the distinctions made between the types of water users is discriminatory. A statute is not invalid because it draws distinctions between classes and treats those classes differently, so long as the distinctions are based upon legitimate differences between the classes and bear a reasonable relationship to the purpose of the legisla- tion. According to depletion or consumptive use rates, irriga- tion consumes 89 percent of the total water in the state. The B-17 increasing competition between farming. mining and urban uses for groundwater was recognized in the Jarvis trilogy. Arizona courts have long recognized that reconciling these competing uses was a task for the legislature. Ernst, 79 Ariz. at 411, 291 P.2d at 770. Water users have long been on notice that the State would at some point have to intervene to regulate prospective uses of a dwindling resource in the face of increased use. The Code does so in a structured prin- cipal manner with the state’s general welfare as its talisman. The plaintiffs have claimed that the Code in several places prefers municipal water companies over private com- panies and is therefore violative of equal protection. Courts have upheld the differentiation between private and public utilities where such distinction is justified by the aims of the legislation. Springfield Gas and Electric Co. v. City of Springfield, 257 U.S. 66, 42 S.Ct. 24, 66 L.Ed. 131 (1921); Southern California Edison Co. v. United States, 415 F.2d 758. cert. denied, 396 U.S. 957, 90 S.Ct. 427, 24 L.Ed.2d 420 (9th Cir. 1969). The distinctions in the Code are clearly justified. Private companies are frequently formed by subdividers to provide services for their developments. In some instances, they are under-financed, and generally, the motives of the developer are not so much publicly oriented as they are to-assist in the sale of lots in the subdivision. Public companies frequently are forced to later take over private companies. Further, pri- vate companies are far more constrained than public com- panies in the raising of revenues through bonds. One of the primary goals of the Code is to prohibit urban development in areas where adequate water supplies do not exist. Public companies are more able to plan for the future than their private counterparts. They have a sounder eco- nomic base and a legal obligation to plan for and assure ade- quate water supplies. Any distinctions made between these entities by the Code are completely rational and therefore justified. B-18 Also heard, is the complaint that mining receives a different treatment from other industrial water users in the obtaining of use permits. Defendants point out that unlike most other water users, mining companies do not have any flexibility in where they locate; they mine where the ore is available. Furthermore, mining accounts for only 2.7 per- cent of the total groundwater pumping in the State, while making a very significant contribution to the economy. Finally, the mining industry's use of water is the least inten- sive per acre of land of any economic enterprise in the State outside of stock grazing. The defendants properly point out that any distinctions conferred on the mining industry in its obtaining use permits is certainly justified by the unique position it occupies. The quantity of water which may be used by irrigators will be limited by irrigation water duties to be set by the Director of the Department of Water Resources. These determinations are to be made upon an analysis of each individual farm unit. §45-402.10. Such an analysis may take into account the unique situation of each tract of land and is to be based upon historical use. Irrigators, unlike other water users, have the availability of variances, flexibility accounts and credits. to mitigate hardships that water duties may occasion. Additionally, irrigators are the only group of water users for whom conservation is not mandatory. Plaintiffs, however, have argued that the system of water permits is discriminatory. This argument, like their others, must fail. The Ernst case established that the legislature could validly prohibit the irrigation of new land. Presently, the irrigation of crops in the State consumes more than the entire dependable water supply of the State. The legislature, therefore, has a valid basis, indeed responsibility, for lim- iting the development of land for new irrigation. The State has not prohibited existing uses. Instead, it has provided that all existing irrigation may continue subject only to the imposition of use duties designed to promote reasonable groundwater conservation. The state has B-19 designed a rational method of attaining a legitimate govern- mental goal. The Code is not constitutionally discrimi- natory. MOTION TO STRIKE Plaintiffs have submitted a Motion to Strike many of the affidavits and exhibits that the defendants have introduced in support of their Cross-Motion for Summary Judgment. They allege that many of the documents are irrelevant or immaterial, that they have not been authenticated or that the materials were never considered by the legislature. Plain- tiffs also allege that some of the affidavits should be stricken in that they are not made on the basis of personal knowl- edge. Finally, they present an estoppel argument, contending that because they voluntarily withdrew a notice of deposi- tion in the face of a defense motion for protective order, that none of the information sought from the deponent should be permitted to be introduced. During the discovery stages of this case, plaintiffs noticed the deposition of Kathleen Ferris, Chief Counsel for the Department of Water Resources and past Executive Director of the Groundwater Management Study Commis- sion. The defendants filed a Motion for Protective Order, siating that Ferris was a member of the defense counsel team in this lawsuit, that some of the anticipated ques- tioning was protected by the attorney-client privilege, and that the information sought by the plaintiffs was irrelevant under the Enrolled Bill Doctrine. Upon receipt of the Motion for Protective Order, plaintiffs voluntarily withdrew their notice of deposition, without the Court ever acting. Plaintiffs now argue that defendants should not be per- mitted to introduce evidence that they earlier argued was irrelevant under the Enrolled Bill Doctrine. They contend that the consideration of such evidence would offend notions of estoppel. Initially, it must be remembered that the Court was never forced to face the request for protective order. Plaintiffs voluntarily abandoned their intent to depose Ferris, thereby B-20 mooting the Motion for Protective Order. The Court knows of no doctrine that prohibits a party from arguing in the alternative at various states of the litigation. There certainly was no law of the case established previously. Furthermore, it would be ridiculous to allow plaintiffs to put the rationality of the legislation of the Code in question, and then tie the hands of the defendants behind their backs by prohibiting them from presenting a case for its rational basis. The Motion to Strike on the basis of estoppel is denied. ; Parts of the documentation by the defendant was intro- duced in response to the plaintiffs’ argument that there was an impermissible delegation of legislative authority in the preparation, passage and signing of the legislation. Although defendants have posited that such an inquiry is barred by the Enrolled Bill Doctrine, they have presented evidence for the purpose of showing that the Code followed proper legis- lative channels in its preparation and adoption. The Court has agreed that judicial inquiry into the legislative process is impermissible. Consequently, none of the materials presented by the defendants in this regard have been consid- ered. The plaintiff's Motion to Strike is, therefore, granted to the extent that it sought exclusion of materials which go behind the bill to show that the legislation was properly drafted and passed. The other materials in support of the defendants’ Motion for Summary Judgment may properly be considered. The plaintiffs have opened the door regarding whether there existed a rational basis for the Groundwater Code. The defendants have responded with the materials on which the legislation is based. The fact that the legislature did not con- sider each page of the studies and reports is not grounds for holding such information inadmissible. The materials are relevant and material. The foundation objections are so vague as to not constitute proper objections. The authentica- tions objections are legally frivolous. The Motion to Strike on these grounds is denied. B-21 Based upon the foregoing discussion of the facts and law, IT IS ORDERED that the defendants’ Cross-Motion for Summary Judgment is granted, while the plaintiffs’ Cross- Motion for Summary Judgment is denied. IT IS FURTHER AND FINALLY ORDERED that the plaintiffs’ Motion to Strike is granted in part and denied in part. DATED this 19th day of July 1982. C. A. Muecke Chief Judge APPENDIX C - ORDER OF COURT OF APPEALS ON PETITION FOR REHEARING C-1 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CLIFTON N. CHERRY, et ux, et al., Plaintiffs- Appellants, No. 82-5765 vs. ‘ WESLEY E. STEINER, ORDER etal. Defendants- Appellees. Before: PECK.* FLETCHER, and PREGERSON, Circuit Judges. The panel in this case has voted to deny the petition for rehearing. The full court has been advised of the suggestion for rehearing en banc and no judge of the court has requested a vote on the suggestion. Fed. R. App. P. 35(b). The suggestion for rehearing en banc is hereby rejected. *Honorable John W. Peck. Senior United States Circuit Judge for the Sixth Circuit. sitting by designation. APPENDIX D - THE 1980 ARIZONA GROUNDWATER MANAGEMENT ACT (INCLUDING 1981 AMENDMENTS) . a D-1 ARTICLE 1. ADMINISTRATION § 45-401. Declaration of policy A. The legislature finds that the people of Arizona are dependent-in whole or in part upon groundwater basins for their water supply and that in many basins and sub-basins withdrawal of groundwater is greatly in excess of the safe annual yield and that this is threatening to destroy the economy of certain areas of this state and is threatening to do substantial injury to the general economy and welfare of this state and its citizens. The legislature further finds that it is in the best interest of the general economy and welfare of this state and its citizens that the legislature evoke its police power to prescribe which uses of groundwater are most beneficial and economically effective. B. It is therefore declared to be the public policy of this state that in the interest of protecting and stabilizing the general economy and welfare of this state and its citizens it is necessary to conserve, protect and allocate the use of groundwater resources of the state and to provide a frame- work for the comprehensive management and regulation of the withdrawal, transportation, use, conservation and con- veyance of rights to use the groundwater in this state. § 45-402. Definitions. In this chapter, unless the context otherwise requires: 1. ‘‘Accounting period’’ means the calendar year, except such other twelve-month period as may be other- wise agreed upon by the director and the owner of a farm or a district on behalf of its landowners. 2. ‘*‘Active management area’’ means a geographical area which has been designated pursuant to article 2 of this chapter as requiring active management of groundwater. 3. ‘‘Animal industry use’’ means the production, growing and feeding of livestock, range livestock or poul- D-2 try, as such terms are defined in § 24-101. Animal industry use is included in the term and general treatment of indus- try in this chapter, unless specifically provided otherwise. 4. “City” or “‘town”’ means a city or town incorporated or chartered under the constitution and laws of this state. 5. ‘“*Convey’’ means to transfer the ownership of a grandfathered right from one person to another. 6. “‘Effluent’’ means water which, after being with- drawn as groundwater or diverted as surface water, has been used for domestic, municipal or industrial purposes and which is available for reuse for any purpose, whether or not the water has been treated to improve its quality. 7. ‘Exempt well’’ means a well having a pump with a maximum capacity of not more than thirty-five gallons per minute which is used to withdraw groundwater for domes- tic purposes, including the non-commercial irrigation of not more than one acre of land. 8. “‘Expanded animal industry use’’ means increased water use by an animal industrial enterprise on the land in use by the enterprise on June 12, 1980 or on immediately adjoining land, excluding irrigation uses. 9. ‘*Farm’’ means an area of irrigated land under the same ownership which is served by a water distribution system common to the irrigated land and to which can be applied common conservation, water measurement and water accounting procedures. 10. ‘‘Farm unit’? means one or more farms irrigated with groundwater which are contiguous or in proximity to each other with similar soil conditions, crops and cropping patterns. 11. ‘“*Grandfathered right’’ means a right to withdraw and use groundwater pursuant to article 5 of this chapter based on the fact of lawful withdrawals and use of groundwater prior to the date of the designation of an active management area. D-3 12. **Groundwater basin’’ means an area which, as nearly as known facts permit as determined by the director pursu- ant to this chapter, may be designated so as to enclose a relatively hydrologically distinct body or related bodies of groundwater, which shall be described horizontally by sur- face description. 13. ‘Initial active management area’’ means the Tucson, Phoenix, Prescott or Pinal active management area estab- lished by § 45-411. 14. “‘Irrigate’’ means to apply water to two or more acres of land to produce plants or parts of plants for sale or human consumption, or for use as feed for livestock, range livestock or poultry, as such terms are defined in § 24-101. 15. “Irrigation acre’’ means an acre of land, as deter- mined in § 45-465, subsection B, to which an irrigation grandfathered right is appurtenant. 16. ‘Irrigation district’’ means a political subdivision, however designated, established pursuant to chapter 4 or 6 of this title. 17. “Irrigation grandfathered right’’ means a grand- fathered right determined pursuant to § 45-465. 18. “Irrigation non-expansion area’’ means a geograph- ical area which has been designated pursuant to article 3 of this chapter as having insufficient groundwater to provide a reasonably safe supply for the irrigation of the cultivated lands at the current rate of withdrawal. 19. ‘Irrigation use’’ means the use of groundwater on two or more acres of land to produce plants or parts of plants for sale or human consumption, or for use as feed for livestock, range livestock or poultry, as such terms are defined in § 24-101. 20. “‘Irrigation water duty’’ or ‘‘water duty’’ means the amount of water in acre-feet per acre that is reasonable to apply to irrigated land in a farm unit during the accounting period, as determined by the director pursuant to §§ 45-564 D-4 through 45-568. 21. “*Non-irrigation grandfathered right’’ means a grand- fathered right determined pursuant to § 45-463, 45-464, 45- 469 or 45-472. 22. “*‘Non-irrigation use’’ means a use of groundwater other than an irrigation use. 23. ‘*Person’’ means an individual, public or private corporation, company, partnership, firm, association, so- ciety, estate, trust, any other private organization or enter- prise, the United States, any state, territory or country or a governmental entity, political subdivison or municipal cor- poration organized under or subject to the constitution and laws of this state. 24. ‘‘Private water company’’ means any entity which distributes or sells groundwater, except a political subdi- vision or an entity established pursuant to this title which is not regulated as a public service corporation by the Ari- zona corporation commission under a certificate of public convenience and necessity. A city or town is not a private water company. 25. ‘Service area’’ means: (a) With respect to a city or town, the area of land actu- ally being served water by the city or town plus: (i) Additions to such area which contain an operating distribution system owned by the city or town primarily for the delivery of non-irrigation water. (ii) The service area of a city, town or private water company that obtains its water from the city pursuant to a contract entered into prior to the date of the designation of the active management area. (>) With respect to a private water company, the area of land of the private water company actually being served water by the private water company plus additions to such area which contain an operating distribution system owned by the private water company primarily for the delivery of D-5 non-irrigation water. 26. ‘Service area of an irrigation district’? means: (a) With respect to an irrigation district which was en- gaged in the withdrawal, delivery and distribution of groundwater as of the date of the designation of the active management area, the area of land within the boundaries of the irrigation district actually being served water by the irrigation district at any time during the five years preceed- ing the date of the designation of the active management area plus any areas as of the date of the designation of the active management area within the boundaries of the irri- gation district which contain an operating system of canals, flumes, ditches and other works owned or operated by the irrigation district. The service area may be modified pur- suant to § 45-494.01. (b) With respect to an irrigation district which was not engaged in the withdrawal, delivery and distribution of groundwater as of the date of the designation of the active management area: (i) The acres of member lands within the boundaries of the irrigation district which were legally irrigated at any time from January 1, 1975 through January 1, 1980 for initial active management area or during the five years preceding the date of the designation of the active manage- ment area for subsequent active management areas. (ii) Any areas as of the date of the designation of the active management area within the boundaries of the irri- gation district which contain an operating system of canals, flumes, ditches and other works for the withdrawal, deliv- ery and distribution of water. 27. ‘*Sub-basin’’ means an area which, as nearly as known facts permit as determined by the director pursuant to this chapter, may be designated so as to enclose a rela- tively hydrologically distinct body of groundwater within a groundwater basin, which shall be described horizontally by surface description. D-6 28. ‘‘Subsequent active management area’’ means an active management area established after June 12, 1980 pursuant to article 2 of this chapter. 29. ‘*Subsidence’’ means the settling or lowering of the surface of land which results from the withdrawal of groundwater. 30. ‘*Transportation’’ means the movement of ground- water from the point of withdrawal to the point of use. 31. ‘*Type 1 non-irrigation grandfathered right’’ means a non-irrigation grandfathered right associated with retired irrigated land and determined pursuant to § 45-463, 45-469 or 45-472. 33. ‘*Type 2 non-irrigation grandfathered right’’ means a non-irrigation grandfathered right not associated with retired irrigated land and determined pursuant to § 45-464. 33. ‘*Well’’ means a man-made opening in the earth through which water may be withdrawn or obtained from beneath the surface of the earth. § 45-403. Designation of groundwater basins and sub- basins; hearing A. Within eighteen months of the effective date of this section’, the director shall propose boundaries for all ground- water basins and sub-basins of groundwater basins in this state not included within initial active management areas established pursuant to § 45-411. B. Within twenty-four months of the effective date of this section’, the director shall hold public hearings to consider the final boundaries of groundwater basins and sub-basins in this state not included within initial active management areas established pursuant to § 45-411. The director shall give reasonable notice of the hearing appropriate to the circumstances which shall include the publication once each week for two consecutive weeks in a newspaper of general circulation in each county in which the proposed ground- * June 12, 1980. D-7 water basin is located. Any notice shall contain the time and place of the hearing, the legal description and a map clearly identifying and describing all lands to be included in the proposed groundwater basin and any sub-basin and any other information the director deems necessary. C. The hearings shall be held at the county seat of the county in which the major portion of the land in the pro- posed groundwater basin is located as soon as practicable but no less than thirty days and no more than sixty days after the first publication of the notice of the hearing. At the hearing, the director shall present the factual data in his possession in support of the proposed action. Any person may appear at the hearing, either in person or by representa- tive, and submit oral or documentary evidence for or against the proposed action. In making his determination, the director shall give full consideration to public comment and to recommendations made by local political subdivisions. § 45-404. Findings upon hearing; maps; order for boun- daries of groundwater basin; review and modification of boundaries A. Within sixty days after the hearing, the director shall make and file in his office written findings with respect to matters considered during the hearing. For each ground- water basin, the director shall prepare and file in his office: 1. A map clearly identifying all lands included within the groundwater basin and its sub-basins. 2. Factual data justifying the boundaries of the ground- water basin and sub-basins. 3. An order designating the boundaries of each ground- water basin and its sub-basins. B. The findings and order shall be published in the manner and for the length of time prescribed for the pub- lication of notice of the public hearing and the order is effective when published for the final time. The materials required by subsection A of this section and a transcript of a eT D-8 of the hearing are public records of.the department and shall be available for examination by the public during regular business hours. C. The director shall file a true copy of the map in the office of the county recorder of the county or counties in which the groundwater basin is located. D. The director may, as conditions require and factual data justify, review and modify the boundaries of any groundwater basin or any sub-basin of a groundwater basin except for groundwater basins and sub-basins of a ground- water basin that are included within an initial active manage- ment area. The review and modification of boundaries of a groundwater basin or sub-basin included within a subse- quent active management area or irrigation non-expansion area shall follow procedures set forth in §§ 45-417 and 45-438. Any modification of boundaries designated pursu- ant to this article shall follow as closely as practicable the procedural requirements § 45-403 and this section. § 45-405. Rehearing; appeals from decisions of the direc- tor; assignment of appeals A. The director shall, by regulation, provide an oppor- tunity for rehearing or review of any decision of the director. B. Except as otherwise provided in this chapter, appeals from a decision of the director shall be conducted pursuant to title 12, chapter 7, article 6' and shall extend to all ques- tions of law and fact presented by the record. C. A hearing held by the director or hearing officer shall be stenographically reported. If the person appeals a decision of the director or hearing officer, a transcript shall be made. D. If no hearing was held, the court shall remand to the director for purposes of conducting a hearing, unless the ' Section 12-901 etgeq. D-9 party appealing waives such remand and consents that the matter be decided by the court on the record before it. E. No new or additional evidence in support of or in opposition to a finding, order, determination or decision of the director shall becheard by the court except if, in the discretion of the court, justice demands the admission of such evidence. F. Each appeal under this section shall be assigned to a. judge whom the chief justice of the supreme court has spe- cifically designated, pursuant to § 45-406, to hear appeals under this section. § 45-406. Designation of judges; publication of designated judges A. The chief justice of the supreme court, within sixty days after the effective date of this section,' shall designate at least one judge, but not more than five judges, of the superior court to hear appeals perfected under § 45-405. The chief justice of the supreme court shall also specify the particular county or counties for which each designated judge will be available for assignment. B. The supreme court shall publish in the rules of the supreme court the name ef each designated judge and the county or counties in which each designated judge will be available for assignment. C. The presiding judge for the county in which an appeal has been perfected under § 45-405 shall assign the appeal to the appropriate judge desigiiated by the chief justice of the supreme court and shall advise in writing the presiding judge and clerk of the superior court in the county in which the designated judge ordinarily sits about the assignment. * June 12, 1980. D-10 § 45-407. Stay of director’s decision; precedence of appeals; review by the court of appeals A. The decision of the director shall not be stayed pend- ing appeal, except that the judge to whom the appeal has been assigned may stay the decision of the director with or without bond upon a showing of good cause. In determin- ing whether good cause exists under the circumstances, the court may consider: 1. The public interest will not be adversely affected by a stay. 2. The stay will not harm others. 3. There is a high probability that the appellant will suc- ceed on the merits. 4. The appellant will suffer irreparable harm before a decision on the merits can be rendered. B. For the benefit of the people of this state, appeals perfected under § 45-405 have precedence, in every court, over all other civil proceedings. C. The final decision of the superior court is appealable in the same manner as in civil actions generally and shall be governed by the rules of appellate procedure. ARTICLE 2. ACTIVE MANAGEMENT AREAS § 45-411. Initial active management areas; maps A. Four initial active management areas are established on the effective date of this section.' The four initial active management areas are: 1. The Tucson active management area which includes the upper Santa Cruz and Avra valley sub-basins. 2. The Phoenix active management area which includes the east Salt river valley, west Salt river valley, Fountain hitis, Carefree, lake Pleasant, Rainbow valley and Hassa- yampa sub-basins. D-i1 3. The Prescott active management area which includes the little Chino and upper Agua Fria sub-basins. 4. The Pinal active management area which includes the Maricopa-Stanfield, Eloy, Aguirre valley, Santa Rosa valley and Vekol valley sub-basins. B. The boundaries of the initial active management areas are shown on the maps filed in the office of the secretary of state on the effective date of this chapter.' C. A true copy of the maps identifying the initial active management areas shall be on file in the department and shall be available for examination by the public during regular business hours. A true copy of the map of each initial active management area shall also be filed in the office of the county recorder of the county or counties in which the active management area is located. / ' June 12, 1980. § 45-412. Subsequent active management areas; criteria; review of groundwater basins not subject to active manage- ment A. The director may designate an area which is not in- cluded within an initial active management area, pursuant to § 45-411, as a subsequent active management area if the director determines that any of the following exists: 1. Active management practices are necessary to preserve the existing supply of groundwater for future needs. 2. Land subsidence or fissuring is endangering property or potential groundwater storage capacity. 3. Use of groundwater is resulting in actual or threatened water quality degradation. B. An active management area designated pursuant to this section may include more than one groundwater basin but shall not be smaller than a groundwater basin or include D-12 only a portion of a groundwater basin, except for the re- gional aquifer systems of northern Arizona. C. The director shall periodically review all areas which are not included within an active management area to deter- mine whether such areas meet any of the criteria for active management areas as prescribed in this section. § 45-413. Hearing on designation of subsequent active management areas and boundaries; notice; procedures A. If the director proposes to designate a subsequent active management area pursuant to § 45-412, subsection A, the director shall hold a public hearing to consider: 1. Whether to issue an order declaring the area an active management area. 2. The boundaries and any sub-basins of the proposed active management area. B. The director shall give reasonable notice of the hearing under the circumstances which shall include publi- cation once each week for two consecutive weeks in a news- paper of general circulation in each county in which the proposed active management area is located. Any notice shall contain the time and place of the hearing, the legal description and a map clearly identifying and describing all lands to be included in the proposed active management area and any sub-basins and any other information the director deems necessary. C. The hearing shall be held at a location within the pro- posed active management area as soon as practicable but no less than thirty days and no more than sixty days after the first publication of the notice of hearing. At the hearing, the director shall present the factual data in his possession in support of the proposed action. Any person may appear at the hearing, either in person or by representative, and submit oral or documentary evidence for or against the proposed action. In making his dé@termination, the director shall give full consideration to public comment and to D-13 § 45-414. Findings upon hearing; order for active manage- ment area; publication A. Within thirty days after the hearing, the director shall make and file in his office written findings with respect to matters considered during the hearing. If the director de- cides to declare an area an active management area, the director shall make and file an order designating the active management area. B. The findings and order shall be published in the man- ner and for the length of time prescribed for the publication of notice of the public hearing, and the order is effective when published for the final time. All factual data compiled by the director, a transcript of the hearing, a copy of the findings and a map identifying the lands included in the active management area are public records of the depart- ment and shall be available for examination by the public during regular business hours. C. The director shall file a true copy of the map in the office of the county recorder of the county or counties in which the active management area is located. § 45-415. Local initiation for active management area; pro- cedures A. A groundwater basin which is not included within an initial active management area may be designated an active management area upon petition by ten percent of the regis- tered voters residing within the boundaries of the proposed active managenient area, as of the most recent report com- piled by the county recorder in compliance with § 16-168, subsection G, and a subsequent election held pursuant to the general election laws of this state. The form of the peti- tion shall be the same as for initiative petitions, and the applicant for such petition shall comply with the provisions of § 19-111. D-14 B. Upon application for a petition number with the clerk of the board of supervisors or county election officer, the director shall transmit a map of the groundwater basin to the county recorder of each county in which the proposed active management area is located. The map shall be on a scale adequate to show with substantial accuracy where the boundaries of the groundwater basin cross the boundaries of county voting precincts. The director shall also transmit to the county recorder all other factual data concerning the boundaries of the groundwater basin that may aid the county recorder in the determination of which registered voters of the county are residents of the groundwater basin. C. Any registered voter of a county whose residency in the groundwater basin is in question shall be allowed to vote. The ballot shall be placed in a separate envelope, the outside of which shall contain the precinct name and num- ber, the signature of the voter, the residence address of the voter, and the voter registration number of the voter, if available. The voter receipt card shall be attached to the envelope. The county recorder shall verify the ballot for proper residency of the voter before counting. Such verif- ication shall be made within two days following the elec- tion, and the voter receipt card shall be returned to the voter. Verified ballots shall be counted using the procedure outlined for counting absentee ballots. If residency in the groundwater basin is not verified, the ballot shall remain vuhopened and shall be destroyed. D. Except as provided in subsection E of this section, all election expenses incurred pursuant to this section are the responsibility of the county involved. E. If a groundwater basin is located in two or more counties, the following procedures apply: 1. The petition shall be filed with the clerk of the board of supervisors or county election officer of the county in which the plurality of the registered voters in the ground- water basin resides. | gC — D-15 2. The number of registered voters required to sign the petition shall be ten per cent of the registered voters residing within the boundaries of the proposed active management area, as of the most recent report compiled by the county recorder in compliance with § 16-168, subsection G, within the county in which the plurality of the registered voters in the groundwater basin resides. 3. The election shall be called by the board of supervisors of the county in which the petition is filed, and the board shall immediately notify the. board of supervisors of any other county included in the groundwater basin of the date of the election. The election shall be held not less than sixty days or more than ninety days from the date of call. The board of supervisors so notified shall then call the election in their county for the same date and follow the procedures for conducting the general elections in this state. 4. All election expenses incured pursuant to this subsec- tion are the responsibilities of the counties involved on a proportional basis considering the number of registered voters of each county that are residents of the ground- water basin. F. The ballot shall be worded, ‘‘should the (insert name of basin) groundwater basin be designated an active man- agement area?’’ Followed by the words ‘‘yes’’ and ‘‘no’’. Opposite each such word there shall be a square in which the voter may make a cross indicating his preference. § 45-416. Limitation on number of irrigated acres ‘A. If the director initiates the procedure for designating a subsequent active management area or the board of super- visors calls an election to establish an active management area, an irrigation user may not increase the number of his irrigated acres within the proposed active management area in excess of the highest number of acres he has irrigated within the proposed active management area at one time in one year in the five years preceding the initiation of desig- D-16 nation procedures by the director or the call for the election by the board of supervisors. B. The limitation on the numbgr of irrigated acres shall continue in effect until the director makes a final determin- ation pursuant to § 45-414 or the final results of an election to establish an active management area pursuant to § 45-415 are certified by the board of supervisors of the coun- ty or counties in which the proposed subsequent active management area is located. § 45-417. Review and modification boundaries of subse- quent active management area A. The director may review and modify the boundaries of a subsequent active management area or any of its sub- basins as conditions require and factual data justify. B. The director shall review the boundries of a subse- quent active management area or any of its sub-basins upon receipt of a petition signed by persons who together with- draw not less than one-fourth of the groundwater with- drawn in the active management area or by request of the groundwater users advisory council in the active manage- ment area. C. Before modifying the boundaries of a subsequent active management area or any of its sub-basins the direc- tor shall give notice of and hold a hearing on the proposed modifications pursuant to the procedures prescribed by § 45-413. After the hearing, the director shall prepare written findings pursuant to § 45-414. § 45-418. Area director; appointment; term; qualifications; compensation A. The director shall appoint an area director for each active management area. For reasons of economy and effi- ciency in administration, one person may be the area direc- tor for more than one active management area. The area director shall serve at the pleasure of the director. D-17 B. The area director is exempt from the state personnel system and is entitled to received compensation as deter- mined pursuant to § 38-611. § 45-419. Duties of area director The area director shall: 1. Assist the director in the development of the manage- ment plan for the active management area and implement the plan under the director’s supervision. 2. Have such other duties as the director may assign and shall be responsible to the director for the performance of such duties. 3. Furnish technical and clerical services and such other assistance to the groundwater users advisory council as is required, to the extent funds are made available for such assistance. § 45-420. Groundwater users advisory councils; appoint- ment; representation of water users; term; compensation A. There shall be a groundwater users advisory council in each active management area consisting of five members. Members of the council shall be appointed by the governor to represent the users of groundwater in the active manage- ment area and on the basis of their knowledge of, interest in and experience with problems relating to the development, use and conservation of water. B. Members of the council shall serve without compen- sation, except that each member shall be reimbursed for travel and subsistence while engaged in business of the council in the same manner as is provided by law for state officers. § 45-421. Administrative duties of the groundwater users advisory councils. The groundwater users advisory ccouncil shall: 1. Advise the area director for the active management D-18 area, make recommendations on groundwater management programs and policies for the active management area and comment on proposed management plans for the active management area before they are adopted by the director. 2. Keep the minutes of its meetings and all records, re- ports and other information relative to its work and pro- grams in permanent form indexed and systematically filed. 3. Elect from its members a chairman and vice-chairman for terms of two years expiring on the third Monday of January of each even numbered year. 4. Designate the person or persons who shall execute all documents and instruments on behalf of the council. 5. Manifest and record its actions by motion, resolution or other appropriate means. 6. Make a complete record of its proceedings which shall be open to public inspection during regular business hours in the branch office of the department in the active man- agement area. ARTICLE 3. IRRIGATION NON-EXPANSION AREAS § 45-431. Initial irrigation non-expansion areas The Douglas critical groundwater area and the Joseph city critical groundwater area, delineated in the orders of the state land commissioner dated May 5, 1965 and Decem- ber 16, 1974, respectively, are designated as initial irrigation non-expansion areas on the effective date of this chapter and are governed by the provisions of this article. A. The director may designate an area which is not in- cluded within an active management area as a subsequent irrigation non-expansion area if the director determines that both of the following apply: D-19 1. There is insufficient groundwater to provide a reason- ably safe supply for irrigation of the cultivated lands in the area at the current rates of withdrawal. 2. The establishment of an active management area pur- suant to § 45-412 is not necessary. B. An irrigation non-expansion area established pursu- ant to this section may include more than one groundwater sub-basin but shall not be smaller than a groundwater sub- basin or include only a portion of a groundwater sub-basin. § 45-433. Local initiation for designation; procedures A. The designation of a subsequent irrigation non- expansion area may be initiated by the director or by peti- tion to the director signed by either: 1. Not less than twenty-five irrigation users of ground- water, or one-fourth of the irrigation users of groundwater within the boundaries of the groundwater basin or sub- basin specified in the petition. 2. inks par so Of thd cum cea enti neal the boundaries of the groundwater basin or sub-basin speci- fied in the petition as of the most recent report compiled by the county recorder in compliance with § 16-168, subsection G. The form of the petition shall be the same as for an ini- tiative petition and the applicant for such petition shall comply with the provisions of § 19-111. If a groundwater basin or sub-basin is located in two or more counties, the number of registered voters residing within the boundaries of the groundwater basin or sub-basin, as of the most recent report compiled by the county recorder in compli- ance with § 16-168, subsection G, within the county in which the plurality of the registered voters in the ground- water basin or sub-basin resides. B. Upon receipt of a petition pursuant to subsection A, paragraph 2 of this section, the director shall transmit the petition to the county recorder of each county in which the ea D-20 groundwater basin or sub-basin is located for verification of signatures. In addition, the director shall transmit a map of the groundwater basin or sub-basin to the county recor- der of each such county included. The map shall be on a scale adequate to show with substantial accuracy where the boundaries of the groundwater basin or sub-basin cross the boundaries of county voting precincts. The director shall also transmit to the county recorder all other factual data concerning the boundaries of the groundwater basin or sub- basin that may aid the county recorder in the determination of which registered voters of the county are residents of the groundwater basin or sub-basin. § 45-434. Limitation on number of irrigated acres A. If procedures are initiated, whether by the director or by petition, for designating an irrigation non-expansion area, an irrigation ee irrigated acres within the proposed irrigation non- expansion area in excess of the highest number of acres he has irrigated within the proposed irrigation non-expansion area at one time in one year in the five years preceding the notice of the initiation of designation procedures by the director or the filing of the petition by the registered voters. B. The limitation on the number of irrigated acres shall continue in effect until the director makes a final determin- ation pursuant to § 45-436. § 45-435. Hearing on designation of subsequent irrigation non-expansion areas and boundaries; notice; procedures A. If the director finds that an area which is not included within an active management area meets the criteria speci- fied in § 45-432, or a petition is filed pursuant to § 45-433, the director shall hold a public hearing to consider: 1. Whether to issue an order declaring the area an irriga- tion non-expansion area. 2. The boundaries of the proposed irrigation non-expan- sion area. D-21 B. The director shall give reasonable notice of the hear- ing under the circumstances which shall include the publica- tion once each week for two consecutive weeks in a news- paper of general circulation in each county in which the proposed irrigation non-expansion area is located. Any notice shall contain the time and place of the hearing, the legal description and a map clearly identifying and describ- ing all lands to be included in the proposed irrigation non- expansion” area and any other information the director deems necessary. ‘ C. The hearing shall be held at a location in the county in which the major portion of the proposed irrigation non- expansion area is located no less than thirty days, but no more than sixty days after the first publication of the notice of the hearing. At the hearing, the director shall present the factual data in his possession in support of or in opposition to the proposed action. Any person may appear at the hear- ing, either in person or by representative, and submit oral or documentary evidence for or against the proposed ac- tion. In making his determination, the director shall give full consideration to public comment and to recommen- dations made by local political subdivisions. § 45-436. Findings upon hearing; order for irrigation non- expansion area; publication A. Within thirty days after the hearing, the director shall make and file in his office written findings with respect to matters considered during the hearing. If the director de- cides to declare an area an irrigation non-expansion area, the director shall make and file an order designating the irrigation non-expansion area. B. The findings and order shall be published in the man- ner and for the length of time prescribed for the publication of notice of the public hearing, and the order effective when published for the final time. All factual data com- piled by the director, a transcript of the hearing, a copy of D-22 the findings and a map identifying the lands included in the irrigation non-expansicn area are public records of the department and shall be available for examination by the public during regular business hours. C. The director shall file a true copy of the map in the office of the county recorder of the county or counties in which the irrigation non-expansion area is located. § 45-437. Irrigated acreage; water measuring device; trans- portation A. In an initial irrigation non-expansion area established pursuant to § 45-431, only acres of land which were legally irrigated at any time between Jafhuary |, 1975 and January 1, 1980 may be irrigated, and an irrigation user or his suc- cessor may irrigate in any one year only the highest number of acres the user irrigated in any one year in the five years between January 1, 1975 and January 1, 1980. B. In a subsequent irrigation non-expansion area estab- lished pursuant to § 45-432, only acres of land which were irrigated at any time during the five years preceding the notice of the initiation of the procedures to designate the irrigation non-expansion area may be irrigated, and an irri- gation user or his successor may irrigate in any one year only the highest number of acres the user has irrigated in any one year in the five years preceding the notice of the initiation of the procedures to designate the irrigation non- expansion area. C. In an irrigation non-expansion area: 1. Each person withdrawing groundwater from a non- exempt well shall use a water measuring device approved by the director and shall file a report on a calendar year basis with the director on a form provided by the director no later than March 31 of the following year. 2. Transportations of groundwater are subject to the provisions of article 8 of this chapter.’ ' Section 45-541 et seq. D-23 § 45-438. Review and modification of boundaries of irri- gation non-expansion areas A. The director may review and modify the boundaries of an irrigation non-expansion area as conditions require and factual data justify. B. The director shall review the boundaries of an irriga- tion non-expansion area upon receipt of a petition signed by persons who together withdraw not less than one-fourth of the groundwater withd. awn in the irrigation non-expan- sion area. C. Before modifying the boundaries of an irrigation non- expansion area, the director shall give notice of and hold a hearing on the proposed modifications pursuant to the procedures prescribed by § 45-435. After the hearing, the director shall prepare written findings pursuant to § 45-436. § 45-439. Conversion from irrigation non-expansion area to active managment area; director; local initiation; procedures A. The director may designate an irrigation non-expan- sion area as an active management area if the director de- termines that the irrigation non-expansion area meets any of the criteria for designating an active management area specified in § 45-412, subsection A. B. Any action taken under this section is subject to the procedures for notice and hearing prescribed by §§ 45-413 and 45-414. C. An irrigation non-expansion area may be designated an active management area upon petition and election pur- suant to § 45-415 by the registered voters residing in the groundwater basin which is or includes the irrigation non- expansion area. D-24 ARTICLE 4. GROUNDWATER RIGHTS AND USES IN GENERAL § 45-451. Groundwater rights and uses in active manage- ment areas A. In an active management area, a person may with- draw and use groundwater only in accordance with the provisions of article 5 through 12 of this chapter.' B. This chapter shall not be construed to affect decreed and appropriative water rights. ' Sections 45-461 et seq., 45-491 et seq., 45-511 et seq., 45-541 et seq., 45-561 et seq., 45-591 et seq., 45-611 et seq., 45-631 et seq. § 45-452. No new irrigated acreage in active management areas; central Arizona project water; agricultural experi- mentation; definition A. In an initial active management area, except as pro- vided in subsections B and H of this section, only acres of land which were legally irrigated at any time from January 1, 1975 through January 1, 1980, which are capable of be- ing irrigated, which have not been retired from irrigation for a non-irrigation use pursuant to § 45-463 or 45-469 and for which the irrigation grandfathered right has not been conveyed for a non-irrigation use, may be irrigated with any water. In an initial active management area, land which was not irrigated at any time from January 1, 1975 through January 1, 1980 is deemed to have been in irrigation if the director finds that either of the following apply: 1. In areas of an initial active management area not designated as critical groundwater areas under prior statu- tory law prior to the date of the designation of the active management area, land is deemed to have been in irrigation if substantial capital investment has been made for the subjugation of such land for an irrigation use including on- site irrigation distribution facilities and a well or wells the a. D-25 drilling and construction of which were substantially commenced prior to the date of the designation of the active management area. 2. In areas of an initial active management area which were designated as critical groundwater areas under prior statutory law, land is deemed to have been in irrigation if substantial capital investment has been made in the twelve months before June 12, 1980 for the improvement of the land and on-site irrigation distribution facilities, including the drilling of wells, for an irrigation use. This paragraph does not allow irrigation of land which could not have been legally irrigated under prior statutory law. B. In an initial active management area, a person who owns acres of land which may be irrigated pursuant to sub- section A of this section may apply to the director during the central Arizona project contracting period, but no later than January 1, 1985, to permanently retire all or a portion of such acres from irrigation and to irrigate conjunctively with central Arizona project water the same number of sub- stitute acres. The director may approve the substitution of acres if the director determines that all of the following exist: 1. The substitute acres were legally irrigated during the period of September 30, 1958 to September 30, 1968, or such other period as the United States secretary of the inter- ior may designate. 2. The acres to be retired from irrigation and the substi- tute acres are located outside of the exterior boundaries of the service area of a city, town or private water company and such acres are located within the same irrigation district and the same sub-basin. 3. The substitution of acres is necessary to enable the irrigation district within which the acres are located to contract for and deliver central Arizona project water. b 4. Central Arizona project water available to the irriga- tion district within which the acres are located will be ade- D-26 quate to supply the substitute acres. 5. The substitution of acres will benefit the management of the active management area in which the acres are located. C. The director shall give notice of an application to substitute acres pursuant to subsection B of this section once each week for two consecutive weeks in a newspaper of general circulation in the county or counties in the active management area in which the irrigation district is located. The notice shall state that written objections to the substitu- tion of acres may be filed by persons residing in the active management area in writing with the director within thirty days after the last publication of notice and that objections are limited to whether the application meets the criteria for substitution of acres as set forth in subsection B of this section. An objection shall state the name and mailing address of the objector, be signed by the objector, his agent Or attorney and clearly set forth reasons why the substitution should not be allowed. In appropriate cases, including cases where a proper written objection has been filed, the director may hold a hearing. The director shall, thirty days prior to the date of the hearing, give notice in the manner described in this section. A hearing shall be conducted as provided in § 45-480, subsection B. D. Any acres permanently retired from irrigation pur- suant to subsection B of this section relinquish their irriga- tion grandfathered rights, and such rights are deemed to be appurtenant to the substitute acres. Groundwater with- drawn or received for the irrigation of the substitute acres pursuant to an irrigation grandfathered right shall be re- duced by the amount of central Arizona project water received for such acres. E. The service area of the irrigation district in which the acres are located shall be modified to permanently delete the acres permanently retired from irrigation and include the substitute acres. D-27 F. If a person retires land from irrigation pursuant to subsection B of this section, groundwater shall not be with- drawn from such retired land for any purpose unless pur- suant to a groundwater withdrawal permit or unless with- drawn by a city, town or private water company within the service area of such city, town or private water company. G. In a subsequent active management area, except as provided in subsection H of this section, only acres of land which were legally irrigated at any time during the five years preceding the date of the designation of the active management area, which are capable of being irrigated, which have not been retired from irrigation for a non-irri- gation use pursuant to § 45-463 or 45-469 and for which the irrigation grandfathered right has not been conveyed for a non-irrigation use, may be irrigated with any water. H. In an active management area, a state university engaged in the teaching, study of and experimentation in the science of agriculture may irrigate not more than three hundred twenty acres of land for such purposes with not more than five acre-feet of groundwater per acre per year. Water produced from any well pursuant to this subsection shall not be leased, sold or transported off the irrigated land operated by the state university. The right to withdraw and use groundwater pursuant to this subsection does not require a withdrawal permit, is not a grandfathered right, shall not give rise to a grandfathered right and may not be conveyed to any other user. § 45-453. Groundwater rights and uses in areas outside active management areas; amounts; transportation; irriga- tion non-expansion areas In areas outside of active management areas, a person may: Ly 1. Withdraw and use groundwater for reasonable and beneficial use. D-28 2. Transport groundwater pursuant to article 8 of this chapter.’ 3. Use groundwater for irrigation purposes within the exterior boundaries of an irrigation non-expansion area only pursuant to article 3 of this chapter.’ ' Section 45-541 et seq. ? Section 45-531 et seq. § 45-454. Exemption of small domestic wells Withdrawals of groundwater for domestic purposes in- cluding the non-commercial irrigation of not more than one acre of land from wells having a pump with a maximum capacity of not more than thirty-five gallons per minute are exempt from the provisions of this chapter except that: 1. A person withdrawing groundwater from an exempt well shall register the well with the director pursuant to § 45-593. 2. A person shall file notice of intention to drill with the director pursuant to § 45-596 before drilling an exempt well or causing an exempt well to be drilled and an exempt well shall comply with the well construction standards prescribed pursuant to § 45-594. § 45-455. Application to state lands This chapter applies to all lands owned by the state of Arizona and any of its political subdivisions. ARTICLE 5. GRANDFATHERED GROUNDWATER RIGHTS IN ACTIVE MANAGEMENT AREAS § 45-461. Definitions In this article, unless the context otherwise requires: . “Certificate of exemption’’ means a certificate which was issued by the state land department or Arizona water commission under prior statutory law for the purpose of describing specific uses and amounts of water which could D-29 not be enjoined if found to constitue the transfer or trans- portation of groundwater. 2. ‘‘Development plan’’ means a plan for the non- irrigation use of land in connection with which land has been or will be retired from irrigation for the bona fide purpose of conserving or using water for such non- irrigation use which would otherwise be used to irrigate the retired land. 3. **Owner’’ means: (a) With respect to an irrigation grandfathered or a type 1 non-irrigation grandfathered right, the owner of the land to which the right is appurtenant. (b) With respect to a type 2 non-irrigation grandfathered right, the owner of the land from which groundwater is withdrawn pursuant to the right. 4. *‘Same ownership’? means ownership by the same person or entity or by successor persons or entities as a result of succcession to heirs and personal representatives, corporate and partnership reorganizations, mergers, disso- lutions, divestitures, partneships, partitions, joint ventures, foreclosures, receivership or bankruptcy, purchase of capital stock, sale pursuant to United States Code, title 11 . or similar succession, but not by outright sale to a bona fide purchaser for value where no portion of or beneficial inter- est in the successor in interest is retained by the original owner, its shareholders, partners, limited partners or bene- ficiaries. 5. ‘*Water duty acres’’ means the acres of land in a farm, as determined pursuant to § 45-465, subsection B, which are used in calculating the maximum amount of groudnwater which may be used pursuant to an irrigation grandfathered right. § 45-462. Grandfathered groundwater rights; persons in- cluded; certificate of exemption amount is legal use D-30 A. In an active management area, a person who was le- gally withdrawing and using groundwater as of the date of the designation of the active management area or who owns land legally entitled to be irrigated with groundwater as determined pursuant to this article has the right to with- draw or receive and use groundwater as determined by the director pursuant to this article. B. For purposes of determining grandfathered rights pursuant to this article, a groundwater use shall not be de- termined to be illegal merely because the groundwater le- gally withdrawn is or has been transported. C. The amount of groundwater use described by an application for a certificate of exemption is recognized as a legal use for purposes of determining grandfathered rights pursuant to § 45-464, subject to any modification as a result of a finding on appeal of a factual mistake by the state land department or Arizona water commission in computing the amount of the authorized withdrawal. D. The right to withdraw or receive and use ground- water pursuant to this article is a grandfathered right. There are three categories of grandfathered rights as follows: 1. Non-irrigation grandfathered rights associated with retired irrigated land as determined pursuant to §§ 45-463, 45-469 and 45-472. 2. Non-irrigation grandfathered rights not associated with retired irrigated land as determined pursuant to § 45-464. 3. Irrigation grandfathered rights as determined pursu- ant to § 45-465. § 45-463. Type 1 non-irrigation grandfathered right asso- ciated with retired irrigated land; appurtenancy; ownership A. In an initial active management area, a person who owns land which was legally entitled to be irrigated..with groundwater and who retired such land from irrigation D-31 after January 1, 1965 but prior to the date of the designa- tion of the active management area in anticipation of a non-irrigation use has the right to withdraw from or receive for such land three acre-feet of groundwater per acre per year upon showing that: 1. The land has been held under the same ownership since it was retired. 2. A development plan for the proposed non-irrigation use existed at the time the land was retired. B. In a subsequent active management area, a person who owns land which was legally entitled to be irrigated with groundwater and retires such land from irrigation prior to the date of the designation of the active manage- ment area in anticipation of a non-irrigation use has the right to withdraw from or receive for such land the lesser of three acre-feet of groundwater per acre per year or the aver- age annual amount of groundwater which was used per acre during the five years preceding the time the land was retired upon showing that: 1. The land has been held under the same ownership since it was retired. 2. A development plan for the proposed non-irrigation use existed at the time the land was retired and is filed with the director within ninety days after the active management area is designated. | C. The development plan requirements of this section are deemed fulfilled if the land retired from irrigation has been described in an application for a certificate of exemp- tion or if the land retired from irrigation is owned in con- junction with non-irrigation uses existing or for which sub- stantial capital commitments have been incurred for the non-irrigation development of such land as of the date of the designation of the active management area. D. The right to withdraw or receive groundwater pursu- D-32 ant to this section is a non-irrigation grandfathered right associated with retired irrigated land, or a type | non-irri- gation grandfathered right. E. A type | non-irrigation grandfathered right is appur- tenant to the acre of retired irrigated land associated with the right, is owned by the owner of the land to which the right is appurtenant and may be leased with the land. § 45-464. Type 2 non-irrigation grandfathered right not associated with retired irrigated land; determination of amount; ownership A. In an active management area, a person who owns land from which groundwater was being legally withdrawn and used for a non-irrigation purpose as of the date of the designation of the active management area has the right to withdraw annually: 1. If the person holds a certificate of exemption, the greater of: (a) The amount of groundwater established in proceed- ings on the application for certificate of exemption, subject to any modification as a result of a finding on appeal of a factual mistake by the state land department or Arizona water commission in computing the amount of the author- ized withdrawal, less the amount of any right obtained by the person pursuant to § 45-463. — (b) The maximum amount of groundwater legally with- drawn from such land and used by the person in any one of the five years preceding the date of the designation of the active management area, less the amount of any right ob- tained by the person pursuant to § 45-463. 2. If the person does not hold a certificate of exemption, the maximum amount of groundwater legally withdrawn from such. land and used by the person withdrawing the groundwater in any one of the five years preceding the date of the designation of the active management area, less the amount of any right obtained pursuant to § 45-463 by the D-33 person withdrawing groundwater from such land which has not been [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1400%3A2. Public record. Not legal advice.