Opposition Brief — Phelps Dodge Corp. v. United States

Supreme Court, U.S.

FILED

—

oo | aes

No. 99-1388 MAY 19 76if"

In The CLERK

Supreme Court of the United States

4

PHELPS DODGE CORPORATION, ARIZONA PUBLIC

SERVICE COMPANY, GILA VALLEY IRRIGATION

DISTRICT, AND FRANKLIN IRRIGATION DISTRICT,

Petitioners,

THE UNITED STATES, ET AL.,

Respondents.

¢

On Petition For Writ Of Certiorari

To The Supreme Court Of The State Of Arizona

—¢@

BRIEF IN OPPOSITION TO THE PETITION

FOR WRIT OF CERTIORARI

¢

Ropney B. Lewis

Counsel of Record

STEVEN J. W. HEELEY

JoHN T. HEsTAND

James D. Hitt

RutH E. Koester

Gila River Indian Community

5002 N. Maricopa Road, Box 5090

Chandler, Arizona 85226

(520) 796-1344

Attorneys for Respondent

Gila River Indian Community

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Do federal reserved water rights extend to groundwater

(underground water) that is not subject to prior appro-

priation under Arizona law?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED......... ins vaedeoer nes i

TABLE OF AUST IORI oe cen csevesesenvnwe shade iv

SUPPLEMENTAL STATUTORY PROVISIONS

INVOEVEDS IN THE CARE... ccccc te disecdavesans 1

STATEMENT OF THE CAGE... cscs scnc cera ncvneves 1

I. HISTORY OF ARIZONA GROUNDWATER

II. HISTORY OF THE GENERAL ADJUDICATION

OF ALL RIGHTS TO USE WATER IN THE GILA

RIVER SYSTEM AND SOURCE...............: 4

ARGUMENT: THERE IS NO COMPELLING REA-

SON TO GRANT CERTIORARI. CERTIORARI

GMS a oe Ss ee 8

I. THERE IS NO SUBSTANTIAL OR IMPORTANT

FEDERAL QUESTION THAT MUST BE

ANSWERED BY THIS COURT ................ 8

A. THE ARIZONA SUPREME COURT DECI-

SION, AS TO INTERLOCUTORY ISSUE 4,

TURNS ON THE COURT’S INTERPRETA-

TION OF UNIQUE ARIZONA WATER

LAW AND THE PETITION RAISES NO

ISSUE OF NATIONAL IMPORTANCE..... 9

B. THE ARIZONA SUPREME COURT DECI-

SION, AS TO INTERLOCUTORY ISSUE 4,

DOES NOT IMPACT ON THE VAST

MAJORITY OF ARIZONA'S CITIZENS .... 15

iii

TABLE OF CONTENTS - Continued

Page

Il. THE ARIZONA SUPREME COURT DECISION,

AS TO INTERLOCUTORY ISSUE 4, DOES NOT

CONFLICT WITH ANY DECISIONS OF THIS

a SSS ee er meyer rye pene 16

A. THE ARIZONA SUPREME COURT DECI-

SION REQUIRES CONSIDERATION OF

THE PURPOSES OF EACH SPECIFIC FED-

ERAL RESERVATION..............0--. ‘eee

B. THE ARIZONA SUPREME COURT DECI-

SION COMPLIES WITH THE GUIDELINES

OF UNITED STATES ov. KIMBELL

Rik Son dbeniwep ken debai as ohecie wre 17

C. THE ARIZONA SUPREME COURT

DECISION INTEGRATES FEDERAL

GROUNDWATER RIGHTS WITH —

TING ARIZONA LAW. ..........0..c0000- 20

Ill. THERE IS NO REAL OR INTOLERABLE CON-

FLICT BETWEEN THE LOWER COURTS...... 22

A. THERE IS NO CONFLICT BETWEEN THE

FEDERAL COURTS AND THE ARIZONA

SONU GAUMIUEE cb wewis db veskas > seus win'e 23

B. THERE IS NO SIGNIFICANT CONFLICT

BETWEEN STATE SUPREME COURTS .... 25

IV. THE ISSUES BEFORE THE ARIZONA

SUPREME COURT, CONCERNING INTER-

LOCUTORY ISSUE 4, ARE TOO PRELIMINARY

TO WARRANT REVIEW BY THIS COURT.... 28

VW. SCRA occ. re each voids cubes 30

iv

TABLE OF AUTHORITIES

FEDERAL CASES

Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 103

S. Ct. S201, 77 L. Be. 2d SSF (IGGS). eons: 7, 18

Cappaert v. United States, 426 U.S. 128, 96 S. Ct.

Beds GE hw es Se Se ob eae cee ses 16

Cherry v. Steiner, 543 F. Supp. 1270 (D. Ariz. 1982)..... 3

Colville Confederated Tribes v. Walton, 460 F. Supp.

LAO GR. THAR. SOO os i sb cco anacss vaccksnesesdens 24

Gila River Pima-Maricopa Indian Community v.

United States, 9 Cl. Ct. 660 (1986).............. 22, 24

In the Matter of the Determination of Conflicting

Rights to the Use of Water From the Salt River

Above Granite Reef Dam, 484 F. Supp. 778 (D.

PR: - TOE he 04S de Cees 5, 6, 12, 14, 24

Johnson v. Frankell, 520 U.S. 911, 117 S. Ct. 1800,

) ee fe Sk 2 errr orem 12

Landmark Communications, Inc. v. Commonwealth of

Virginia, 435 U.S. 829, 98 S. Ct. 1535, 56 L. Ed. 2d

$ GSS sees is es een once ces 13

McCray v. New York, 461 U.S. 961, 103 S. Ct. 2438,

79 ©, Wh Oe Oe ON ac ices 27

National Labor Relations Board v. Pittsburgh S.S. Co.,

340 U.S. 498, 71 S. Ct. 453, 95 L. Ed. 479 (1951) .... 22

Nevada ex rel. Shamberger v. United States, 165 F.

Sumn.- 600 CD. PaaW. TOME» +s veda cnws pact Seuxecs os 23

Poulos v. New Hampshire, 345 U.S. 395, 73 S. Ct.

FOR, GF Uc Ts Te I EN oak cv SR re eAN ced ined 13

Reitman v. Mulkey, 387 U.S. 369, 87 S. Ct. 1627, 18

Ree A Se ee Chas cen vec tenn dak ri encndeneeae 13

Vv

TABLE OF AUTHORITIES - Continued

Page

Rice v. Sioux City Memorial Park Cemetary, 349 U.S.

70, 75 S. Ct. 614, 99 L. Ed. 897 (1955) ............. 9

San Carlos Apache Tribe of Arizona v. State of Ari-

zona, 668 F.2d 1093 (9th Cir. 1982)................. 6

State of New Mexico v. Aamodt, 618 F. Supp. 993 (D.

RD | EE ITT eo ere ee re Ee 24

Tweedy v. Texas Company, 786 F. Supp. 383 (D.

SN, TOOT ¥ ov 665 es cate lun cvewheabedesven 22, 23, 27

United States v. Cappaert, 508 F.2d 313 (9th Cir.

nn RENEE ERE TS PP OR OC ET TEESE eee Toa 22, 23

United States v. Kimbell Foods, 440 U.S. 715, 99 S.

Ct. 1448, 59 L. Ed. 2d 711 (1979) ...... 17, 18, 19, 20

United States v. New Mexico, 438 U.S. 696, 98 S. Ct.

D0kdee FR fos Bele, BA TIME TAOF OP es occusiccevesevessce 18

United States v. Rio Grande Dam & Irrigation Co.,

174 U.S. 690, 19 S. Ct. 770, 43 L. Ed. 1136 (1899) .... 18

Washington v. Washington State Com. Passenger

Fishing Vessel Ass'n, 433 U.S. 658, 99 S. Ct. 3055,

ae SE ge ee ee fe ee!

Winters v. United States, 207 U.S. 564, 28 S. Ct. 207,

Se he. BR. SO CIGOD) ois vc cciccinccvsas 6, 17, 22, 23, 24

STATE CASES

Bristor v. Cheatham, 73 Ariz. 228, 240 P.2d 185

SEDs £5 4d wb vad Coeds Seid bebe bak eae ee 3

Bristor v. Cheatham, 75 Ariz. 227, 255 P.2d 173

CEP is oh-iiba sine cial ewew sree nudercuresee ewe 3

vi

TABLE OF AUTHORITIES — Continued

Confederated Salish and Kootenai Tribes v. Clinch, 56

Mont. 1356, 991 P.2d 244 (1999)................0.. 26

In re the General Adjudication of All Rights to Use

Water in the Big Horn System, 753 P.2d 76 (Wyo.

WOE ns dass scapes cadesnd ce naa cause esess ers 25, 26

In re the General Adjudication of All Rights to Use

Water in the Gila River System and Source, 175

Ariz. 362, 657 P2d 1236 (1993). ......0.cccvecessusee 2

In re the General Adjudication of All Rights to Use

Water in the Gila River System and Source, 989

Fate FOO CRE. TOFR) onesie vere ewceenseeees passim

Maricopa County Municipal Water Conservation Dis-

trict v. Southwest Cotton Co., 39 Ariz. 65, 4 P.2d

DD CHITA) 0 voc anne tvnstunharset tees peeeneneennn 4 2

Richie v. Grand Canyon Scenic Rides, 165 Ariz. 460,

FO TB BRE CEP os icons ccckegavisnthindanueuss 14

State Farm Fire & Casualty Co. v. American Hardware

Mutual Insurance Co., 224 Ga. App. 789, 482

DAG FOR CERO? ccs oncewnknxsh evens lese then eatews 11

Town of Chino Valley v. City of Phoenix, 131 Ariz. 78,

GOS Fea Bee Cee sas se hacks n tcc ctaocsickeeeek 3, 14

United States v. Superior Court of Arizona, 144 Ariz.

ad, GET FAG GH GMM si oe oun atesd Vk ti nies cee 5

STATUTORY PROVISIONS

RULES

Rule 10, Rules of the Supreme Court of the United

SE TT TTT eT OT ENTE ET ESET eer rr 8

Vii

TABLE OF AUTHORITIES - Continued

Page

Unrrep States Cope

43 U.S.C. § 666 (“McCarran Amendment”) ........ 6, 12

ARIZONA STATUTES

RE TN Deel AM sae sities b's ia dnle ogo oa, 6

Amex. Rav. Othe: OB 468 5.6. 1, 12

Ariz. Rev. Stat. §§ 45-231 through 45-245 (repealed

MOP PR CORY csVC tes ods dibs wae ihe: cas coos iis 4,5, 11

HOME TG TN MII oo sv sic cs cect acevccucsnsc,..,. 5

Rae. Go Sint. § TS i 1

Ariz. Rev. Stat. §§ 45-251 to 45-260................... 5

Ariz. Rev. Start. § tiie ace, CO OE Pe NE. 1, 12

Ariz. Rev. Start. § |, Ti RRR ae ne ep leek ra 11

Ariz. Rev. Stat. § 45-251(5)...............000......... 6

Ariz. Rev. Start. § gees NEN RS ea ee SA 1, 12

TREATISES AND OTHER MATERIALS

Arizona Department of Water Resources, Arizona

Water Resources Assessment (August 1994) ......... 16

John D. Leshy & James Belanger, Arizona Law

Where Ground and Surface Water Meet, 20 Ariz.

We ee We SO ae ey ec 20

John B. Weldon, Jr., General Water-Rights Adjudica-

tion in Arizona: Yesterday, Today and Tomorrow, 27

Ariz. Law Rev. 709 Gy Soho oes ne 4

Viii

TABLE OF AUTHORITIES - Continued

Page

APPENDICES

Explanatory Data........ ikndivnwedetaskoreveheaks A-la

Potential Impact of Issues 4 and 5 on Arizona’s Hydro-

gf | SMP EPP OTonT Ty Terr ray Ty rrr ere A-2

Potential Impact of Issues 4 and 5 on Arizona’s People ... A-3

Potential Impact of Issues 4 and 5 on Arizona’s Water

BOD 5 os tien ceed eae sndeene weber’ dcnsedenans tekeers A-4

1

SUPPLEMENTAL STATUTORY PROVISIONS

INVOLVED IN THE CASE

Arizona Revised Statutes (A.R.S.) § 45-251 provides,

in pertinent part:

1. “General adjudication” means an action for

the judicial determination or establishment

of the extent and priority of the rights of all

persons to use water in any river system and

source.

+** +

3. “Person” means an individual, a partner-

ship, a corporation, a municipal corporation,

the state of Arizona or any political subdivi-

sion, the United States of America, an Indian

tribe or a community or any other legal

entity, public or private.

* 4 *&

7. “River system and source” means all water

appropriable under § 45-141 and all water

subject to claims based upon federal law.

&

vy

STATEMENT OF THE CASE

I. HISTORY OF ARIZONA GROUNDWATER LAW

In Maricopa County Municipal Water Conservation Dis-

trict v. Southwest Cotton Co., 39 Ariz. 65, 4 P.2d 369 (1931),

the Arizona Supreme Court addressed the issue of under-

ground water. The Arizona Court drew a distinction

between subflow, which it held to be appropriable under

Arizona’s prior appropriation laws, and percolating

water, which it held not to be appropriable. The Court

did not, however, provide a definition of or distinction

between subflow and percolating waters.

The Arizona Court considered and rejected one set of

definitions of subflow and percolating water in In re the

General Adjudication of All Rights to Use Water in the Gila

River System and Source, 175 Ariz. 382, 857 P.2d 1236

(1993) (“Gila River II”). In that decision, the Arizona

Court acknowledged that this bifurcated system of water

rights — surface vs. groundwater — was not hydrologically

sound.

As scientific knowledge progressed, most states

revised their water laws to provide for unitary

management of hydraulically connected under-

ground and surface water. Arizona, however,

did not, and continues to adhere to a bifurcated

system of water rights, with compelling implica-

tions for general stream adjudications.

175 Ariz. at 386, 857 P.2d at 1240. The Arizona Court went

on to note: “[W]e recognize that the line between surface

and groundwater drawn by the Southwest Cotton court

and reaffirmed by this court today is, to some extent,

artificial and fluid.” 175 Ariz. at 392, 857 P.2d at 1246.

The terms subflow and percolating water, for purposes

of Arizona’s bifurcated system, were again defined by the

trial court and have again been taken to the Arizona,

Supreme Court on interlocutory review. The Arizona

Court has received briefs and, in December of 1999, heard

oral arguments.

In 1948, the Arizona Legislature adopted the Ground-

water Act, which authorized the creation of critical

i i

groundwater areas. In 1952, in Bristor v. Cheatham, 73

_ Ariz. 228, 240 P.2d 185 (“Bristor I”), the Arizona Supreme

Court reversed Southwest Cotton and determined that per-

colating groundwater was appropriable. Upon rehearing,

following a change in the composition of the court, the

Arizona Supreme Court reversed Bristor I and readopted

the Southwest Cotton rule on non-appropriation of perco-

lating groundwater. Bristor v. Cheatham, 75 Ariz. 227, 255

P.2d 173 (1953) (“Bristor II”).

In 1980, the Arizona Legislature enacted the Ground-

water Management Act and repealed the 1948 Groundwa-

ter Act. The Groundwater Management Act created active

management areas (“AMAs”) and irrigation non-expan-

sion areas. The 1980 Groundwater Management Act was

ruled constitutional in Town of Chino Valley v. City of

Phoenix, 131 Ariz. 78, 638 P.2d 1324 (1981) (“Chino Valley

II”). Therein, the Arizona Supreme Court held that “there

is no right of ownership 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.” 131 Ariz. at 82, 638

P.2d at 1328.

In Cherry v. Steiner, 543 F. Supp. 1270, 1280 (1982), the .

United States District court examined the extent of the

Groundwater Management Act’s coverage.

It established four AMA’s, which account for 69

percent of the State’s groundwater overdraft

and 80 percent 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 Department

of Economic Security has forecasted that the

State’s population will explode most profoundly

in the area encompassed by the Phoenix, Tucson

and Prescott AMA’s.

II. HISTORY OF THE GENERAL ADJUDICATION OF

ALL RIGHTS TO USE WATER IN THE GILA

RIVER SYSTEM AND SOURCE

In 1919, the Arizona Legislature adopted a procedure

for the determination of conflicting water rights, which

was amended in 1928 and 1939. See A.R.S. §§ 45-231 —

through 45-245 (repealed 1979). That procedure was con-

ducted before the Arizona State Land Department in an

administrative hearing, was limited to prior appropria-

tion water rights, involved the rights of streams or water

supplies but not entire river systems and sources, and did

not address federal reserved rights.

General Water-Rights Adjudication in Arizona: Yester-

day, Today and, Tomorrow, 27 Ariz. Law Rev. 709 n. 2, 1985,

set forth the early history of Arizona’s general water

adjudications:

On April 26, 1974, the Salt River Valley Water

Users’ Association (SRVWUA), invoking Ari-

zona’s statutory stream adjudication procedure,

filed a petition with the Arizona State Land

Department to determine conflicting rights to

the use of water in the Salt River above Granite

Reef Dam, east of Phoenix and excluding the

Verde River. SRVWUA filed a similar petition

for the Verde River and its tributaries on Febru-

ary 28, 1976. On February 17, 1978, Phelps

Dodge Corporation filed two petitions with the

State Land Department: one determining the

conflicting rights to the Gila River, and the other

5

determining the conflicting rights to the Little

Colorado River.

The Arizona Supreme Court further described the history

of these general water adjudications in United States v.

Superior Court of Arizona, 144 Ariz. 265, 270, 697 P.2d 658,

663 (1985): |

In 1979 the [Arizona State Land] Department

advised various claimants of the pending peti-

tion and required that claims be filed pursuant

to A.R.S. Section 45-232. Petitioners [San Carlos

Apache Tribe, Tonto Apache Tribe, and the

United States] were among the claimants so

notified. Later that year several Indian tribes,

including the petitioners, filed actions in the

United States District Court for the District of

Arizona, seeking a declaration of rights with

respect to the issues raised in the proceeding

before the Arizona State Land Department.

Within two months after that filing, the state

legislature repealed the former act (Sections

45-231 to 45-245) and replaced it with the pre-

sent statuie (article 6, Title 45, Arizona Revised

Statutes, consisting of Sections 45-251 to 45-260

and entitled “General Adjudication of Water

Rights”).

A number of Arizona Indian Tribes brought actions

in District Court, requesting relief from state administra-

tive water adjudications. The parties to In the Matter of the

Determination of Conflicting Rights to the Use of Water From

the Salt River Above Granite Reef Dam, 484 F. Supp. 778

(1980), included the Salt River Valley Water Users’ Asso-

ciation, the Phelps Dodge Corporation, the State of Ari-

zona, the Gila River Indian Community, the San Carlos

Apache Tribe, and numerous other Arizona Indian Tribes.

bi aii

On January 18, 1980, the District Court remanded the

actions to state court or dismissed them, without preju-

dice, based on the applicabilit) of the McCarran Amend-

ment. 43 United States Code (U.S.C.) § 666. The tribes had

contended that the State adjudication was not a McCar-

ran Amendment proceeding because the Arizona water

rights determination law deliberately excluded non-

Indian uses of percolating groundwater. After an analysis

of the Winters Doctrine, Winters v. United States, 207 U.S.

564, 28 S. Ct. 207, 52 L. Ed. 340 (1908), and the applicable

Arizona state law, the District Court concluded:

Section 45-251(5), Arizona Revised Statutes,

which effectively sets forth the scope of the

State proceedings, defines the phrase “river sys-

tem and source” as “(A)ll water appropriable

under (A.R.S.) Section 45-101 and all water sub-

ject to claims based upon federal law.”

Thus, the State proceedings will determine

federal reserved rights (including federal

reserved rights to percolating groundwater) and

rights to water appropriable under State law.

The only water rights excluded from the State

proceeding are those rights to percolating

groundwater arising solely under existing Ari-

zona case law.

484 F. Supp. at 784.

The District Court’s decision was appealed to “1e

Ninth Circuit Court of Appeals in San Carlos Apache Tribe

of Arizona v. State of Arizona, 668 F.2d 1093 (1982). The

Ninth Circuit reversed the District Court’s decision based

upon its determination that Arizona’s Enabling Act pro-

hibited jurisdiction over Indians in State water adjudica-

tions, the McCarran Act not withstanding. Other issues,

7

including adjudication of groundwater claims, were not

decided.

The Ninth Circuit decision was appealed to this

Court in Arizona v. San Carlos Apache Tribe of Arizona, 463

U.S. 545, 103 S. Ct. 3201, 7 L.Ed. 2d 837 (1983). This Court

reversed and remanded the case indicating that, because

of the unique nature of water rights adjudications and the

uniqueness of the McCarran Amendment, it had been

proper for the District Court to defer to the state court

proceedings.

In re the General Adjudication of All Rights to Use Water

in the Gila River System and Source has now been in litiga-

tion for over twenty years. The current opinion, 989 P.2d

739 (1999) (“Gila River III “), reflects the sixth appearance

of this general stream adjudication before the Arizona

Supreme Court. In this action, the Arizona Court

answered two interlocutory questions:

Do federal reserved water rights extend to

groundwater (underground water) that is not

subject to prior appropriation under Arizona

Law? (Interlocutory Issue 4)

Are federal reserved rights holders entitled to

greater protection from groundwater pumping

than are water users who hold only state law

rights? (Interlocutory Issue 5)

The Arizona Supreme Court answered both questions

affirmatively. No petition for a writ of certiorari was

taken as to Interlocutory Issue 5.

4

Vv

ARGUMENT:

THERE IS NO COMPELLING REASON

TO GRANT CERTIORARI.

CERTIORARI SHOULD BE DENIED.

“Review on a writ of certiorari is not a matter of

right, but of judicial discretion,” and a petition for cer-

tiorari will be granted only for compelling reasons. Rule

10, Rules of the Supreme Court of the United States.

There are no compelling reasons for the Court to grant

this Petition.

I. THERE IS NO SUBSTANTIAL OR IMPORTANT

FEDERAL QUESTION THAT MUST BE

ANSWERED BY THIS COURT.

Over the years, this Court has used a number of

phrases to describe its criteria for accepting a petition for

a writ of certiorari. Whether the Court requires “special

and important reasons,” that the issue be “substantial in

character,” that the issue involve an “important federal

question,” or that the petition contain a “compelling rea-

son,” the rationale is the same - the Court will not use its

limited resources to make determinations that do not

have a significant and material impact.

A federal question raised by a petitioner may be

‘of substance’ in the sense that, abstractly con-

sidered, it may present an intellectually interest-

ing and solid problem. But this Court does not

sit to satisfy a scholarly interest in such issues.

Nor does it sit for the benefit of the particular

litigants. . . . ‘Special important reasons’ imply a

reach to a problem beyond the academic or the

_ episodic.

* * *&

[I]t is very important that we be consistent in

not granting the writ of certiorari except in cases

involving principles the settlement of which is

of importance to the public, as distinguished

from that of the parties, and in cases where

there is a real and embarrassing conflict of opin-

ion and authority between the Circuit Courts of

Appeals.

Rice v. Sioux City Memorial Park Cemetery, 349 U.S. 70, 74,

79, 75 S. Ct. 614, 616, 619-620, 99 L. Ed. 897 (1955).

This Petition for a Writ of Certiorari does not involve

an issue of importance to the nation as a whole, to other

state or federal courts, or to the vast majority of the

citizens or water users in Arizona.

A. THE ARIZONA SUPREME COURT DECISION,

AS TO INTERLOCUTORY ISSUE 4, TURNS ON

THE COURT'S INTERPRETATION OF UNIQUE

ARIZONA WATER LAW AND THE PETITION

RAISES NO ISSUE OF NATIONAL IMPOR-

TANCE.

Water law varies widely from state to state - with

individual peculiarities depending on the hydrology,

geology, water needs, and the legal and hydrologic his-

tory of the particular state. Eastern and midwestern states

tend to use various theories of riparian law. Western

states tend to employ various theories of prior appropria-

tion law. A number of states utilize a combination of

riparian and prior appropriation water law principles.

Individual states have detailed statutes or common law

rules dealing with surface water use, underground water

10

use, or combined water use. Each state has its own statu-

tory or common law rules for dealing with disputes

between competing water users.

“Conforming their law to hydrological reality, most

prior appropriation jurisdictions by now have abandoned

the bifurcated treatment of ground and surface waters

and undertaken unitary management of water supplies.”

Gila River III, 989 P.2d at 744. Arizona has not undertaken

a unitary management of water supplies, and has a bifur-

cated system that divides water into appropriable water

(surface water and underground water designated as sub-

flow) and non-appropriable water (underground water

designated as percolating water) that the Arizona Court

acknowledges is “an artifice . . . that rests on a hydrologi-

cal misconception.” Gila River III, 989 P.2d at 743.

There is no validity to Petitioners’ claim that the

“[t]he opinion below, if adopted as precedent in other

states, will result in conflicts with state laws governing

allocation and management of groundwater throughout

the United States.” Petition, page 26. No other state has

Arizona’s unique blend of water laws - including prior

appropriation, a bifurcated underground water system,

and administrative regulation of some but not all perco-

lating waters - and Arizona’s specific statute dealing

with general adjudications of water rights.

State courts recognize their own independence in

making rulings concerning their distinctive state laws. As

the Georgia Court of Appeals noted: “[T]he decisions of

other jurisdictions are not binding on this Court and will

be followed only when they are determined to be consis-

tent with the orderly and fair development of the law of

11

this state.” State Farm Fire & Casualty Co. v. American

Hardware Mutual Insurance Co., 224 Ga. App. 789, 792, 482

S.E.2d 714, 717 (1997).

The Arizona Supreme Court determination, as to

Interlocutory Issue 4, was based on its detailed analysis

of Arizona’s general adjudication statutes and the inter-

relationship of that law to Arizona groundwater law. The

Arizona Court wrote:

The City of Phoenix argues that our general

adjudication statute permits us to adjudicate

federal water claims only to the extent that they

are claims to water that is appropriable under

state law, and, thus, that we lack jurisdiction to

consider whether federal reserved rights extend

to non-appropriable groundwater. We sum-

marily reject this argument because it is con-

trary to the plain, conjunctive definitional

language of A.R.S. § 45-251(4) and because such

an interpretation would deprive this adjudica-

tion of the comprehensive quality that our gen-

eral adjudication statute was intended to

provide.

Gila River III, 989 P.2d at 744 n. 5.

The Arizona Supreme Court, in this and other rulings

on the Gila River Adjudication, has studied the history of

Arizona’s statutes governing the general adjudication of

water rights. Prior to 1979, Arizona had a statute for

determination of conflicting water rights that was admin-

istrative rather than judicial, was limited to state prior

appropriation rights, and did not consider federal rights.

See A.R.S. §§ 45-231 through 45-245 (repealed 1979).

12

In 1979, a number of Indian tribes filed actions argu-

ing, among other things, that the state system for deter-

mination of conflicting water rights did not comply with

the McCarran Amendment because it did not provide for

the adjudication of Indian rights to percolating ground-

water. See Granite Reef Dam, 484 F. Supp. 778. Two months

after the Indians brought these actions, the Arizona Leg-

islature abolished its existing water rights determination

process and adopted a totally new process that defined a

general adjudication as a judicial determination of the

rights of all persons (including Indian tribes) to use water

in any river system and source. See A.R.S. § 45-251(1) and

(3). The Arizona Legislature defined river system and

source as “all water appropriable under § 45-141 and all

water subject to claims based upon federal law.” See

A.R.S. § 45-251(7). Following the adoption of these stat-

utes, the District Court either remanded the Indian cases

back to state court, or dismissed them without prejudice,

because “the State proceedings will determine federal

reserved rights (including federal reserved rights to per-

colating groundwater).” Granite Reef Dam, 484 F. Supp. at

784.

The Arizona Supreme Court has correctly determined

that the Arizona Legislature intended to include Indian

water rights to percolating groundwater in its general

water rights adjudication statutes.

Neither this Court nor any other federal tribunal

has any authority to place a construction on a

state statute different from the one rendered by

the highest court of the state.

Johnson v. Frankell, 520 U.S. 911, 916, 117 S. Ct. 1800, 1894,

138 L. Ed. 2d 108 (1997).

13

The Arizona Court having interpreted the Arizona

statutes as including federal rights to percolating ground-

water, such “state interpretation is as though written into

the ordinance itself.” Poulos v. New Hampshire, 345 U.S.

395, 402, 73 S. Ct. 760, 765, 97 L. Ed. 1105 (1953). See also

Landmark Communications, Inc. v. Commonwealth of Vir-

ginia, 435 U.S. 829, 838, 98 S. Ct. 1535, 1541, 56 L. Ed. 2d 1

(1978).

In Reitman v. Mulkey, 387 U.S. 369, 378-379, 87 S. Ct.

1627, 1633, 18 L. Ed. 2d 830 (1967), this Court reviewed a

specific California statute and stated:

Here the California court, armed as it was with

the knowledge of the facts and circumstances

concerning the passage and potential impact of s

26 and familiar with the milieu in which that

provision would operate, has determined that

the provision would involve the State in private

racial discrimination to an unconstitutional

degree. We accept this holding of the California

Court.

Here, the Arizona Supreme Court, armed with

knowledge of the facts and circumstances concerning Ari-

zona’s unique groundwater laws and unique general

water rights adjudication statutes, recognized that Ari-

zona’s laws on percolating groundwater are hydro-

logically unsound. It further considered that the Arizona

Legislature amended statutes in response to certain fed-

eral court claims concerning percolating groundwater

and that, based on the statutes’ adoption, the federal

court claims were remanded or dismissed.

The Arizona Supreme Court recognizes that “blind

devotion to federal interpretation is not required; we

14

need not follow the federal cases if we believe Arizona

policy, practice, or case law requires a different result.”

Richie v. Grand Canyon Scenic Rides, 165 Ariz. 460, 464, 799

P.2d 801, 805 (1990). Yet, based upon its intricate knowl-

edge of Arizona’s unique laws and unique hydrology, the

Arizona Court determined that the Arizona statutes give

Arizona courts the jurisdiction to adjudicate the rights of

Indian and other federal reservations to percolating

groundwater. Pursuant to its reasoning in Reitman, this

Court should refuse to grant this Petition for a Writ of

Certiorari.

Because of the complex factual and legal history sur-

rounding the determination as to Interlocutory Issue 4,

this case does not present a good vehicle for this Court's

review. First, neither the Petitioners, nor any other land-

owners/water users, have any “right of ownership of

groundwater in Arizona prior to its capture and with-

drawal from the common supply and the right of the

owner of the overlying land is simply to the usufruct of

the water.” Chino Valley II, 131 Ariz. at 82, 638 P.2d at

1328. Thus, there is no need to consider any federal

question because, under Arizona’s local laws, Petitioners .

have no rights of ownership to the groundwater.

In addition, this case and this issue have been ongo-

ing for over twenty years. Based on the actions filed in

Granite Reef Dam, the Arizona Legislature completely

altered its process for water rights determinations. Based

on the Arizona Legislature’s actions, the District Court

remanded the Indian claims back to state court because

“the State proceedings will determine federal reserved

rights (including federal reserved rights to percolating

groundwater).” 484 F. Supp. at 784. The Salt River Valley

15

Water Users’ Association, Phelps Dodge Corporation, and

the State of Arizona, as well as the Gila River Indian

Community and the San Carlos Apache Tribe, were all

parties to that litigation. Whether the decision is based on

res judicata, collateral estoppel, judicial estoppel, law of

the case, or simply a realization that this has been the

state of the law on this issue in this proceeding for twenty

years, there is no reason for this Court to accept jurisdic-

tion now.

B. THE ARIZONA SUPREME COURT DECISION,

AS TO INTERLOCUTORY ISSUE 4, DOES NOT

IMPACT ON THE VAST MAJORITY OF ARI-

ZONA’S CITIZENS.

Petitioners are incorrect in their claim that the deter-

mination of Issue 4 will adversely affect millions of Ari-

zona’s citizens. In actuality, Issue 4 will have a very

narrow impact. The Arizona Court noted, “some reserva-

tions lack perennial streams and depend for present or

future survival substantially or entirely upon pumping

underground water.” Gila River III, 989 P.2d at 746. The

Arizona Court also wrote: “A reserved right to ground-

water may only be found where other waters are inade-

quate to accomplish the purpose of a reservation.” 989

P.2d at 748. Thus, the federal reservations that might have

water rights, under Issue 4, are those reservations that do

not have surface water resources available to them and

have not had surface resources in the past. The water

basins subject to Issue 4 represent only 1% of Arizona’s

current population — less than 20,000 people — and only

2% of current water use. See Appendices A-3 and A-4.

16

The Arizona Court’s decision, with regard to Inter-

locutory Issue 5, indicates that holders of federal reserved

water rights enjoy greater protection from groundwater

pumping than do holders of state law rights. As in this

Court’s decision in Cappaert v. United States, 426 U.S. 128,

143, 96 S. Ct. 2062, 2071, 48 L. Ed. 2d 523 (1976), Issue 5

deals with the ability of a federal reservation to “protect

its water from subsequent diversion, whether the diver-

sion is of surface or groundwater.” Appendices A-2

through A-4 are based on the Arizona Department.of

Water Resources’ Arizona Water Resources Assessment of

August 1994, which divided the state into a number of

water basins based upon similar hydrology. Interlocutory

Issue 5 will affect those water basins that contain a fed-

eral reservation that has or would have, but for upstream

development and depletion, surface water resources

available. Issue 5 will also affect water basins without a

federal reservation but which are hydrologically con-

nected to basins with a federal reservation. Issue 5 does

have the potential to impact on lands that encompass 87%

of the current water use and 97% of the current popula-

tion of Arizona. Issue 5, however, was not appealed.

II. THE ARIZONA SUPREME COURT DECISION, AS

TO INTERLOCUTORY ISSUE 4, DOES NOT CON-

FLICT WITH ANY DECISIONS OF THIS COURT.

A. THE ARIZONA SUPREME COURT DECISION

REQUIRES CONSIDERATION OF THE PUR-

POSES OF EACH SPECIFIC FEDERAL RESER-

VATION.

Petitioners are incorrect when they claim that Inter-

locutory Issue 4 conflicts with this Court’s decision in

17

Winters v. United States, 207 U.S. 564, by finding a federal

reserved right to groundwater without considering the

purposes of any specific reservation. The Arizona Court

unequivocally stated:

We do not, however, decide that any particular

federal reservation, Indian or otherwise, has a

reserved right to groundwater. A reserved right

to groundwater may only be found where other

waters are inadequate to accomplish the pur-

pose of a reservation. To determine the purpose

of a reservation and to determine the waters

necessary to accomplish that purpose are inev-

itably fact-intensive inquiries that must be made

on a reservation-by-reservation basis.

Gila River III, 989 P.2d at 748.

B. THE ARIZONA SUPREME COURT DECISION

COMPLIES WITH THE GUIDELINES OF

UNITED STATES v. KIMBELL FOODS.

While Respondent does not believe that a Kimbell

Foods analysis was necessary, the Arizona Supreme Court

did not, as alleged by the Petitioners, fail to apply the test

of United States v. Kimbell Foods, 440 U.S. 715, 99 S. Ct.

1448, 59 L. Ed. 2d 711 (1979), when it made its analysis of

the applicability of federal law to the rights of federal

reservations to groundwater.

Kimbell Foods, 440 U.S. at 728, 99 S. Ct. at 1458,

analyzed situations in which there is a need for a nation-

ally uniform body of law. The Arizona Court specifically

considered the issues discussed in Kimbell Foods, noting

first that

18

in order to adjudicate water rights based upon

federal law, the Arizona courts must afford fed-

eral claimants the benefit, when state and fed-

eral law conflict, of federal substantive law. See

Arizona v. San Carlos Apache Tribe, 463 USS.

545, 571, 103 S. Ct. 3201, 77 L. Ed. 2d 837 (1983).

++ *

[T]he Supreme Court has defined the reserved

rights doctrine as an exception to Congress’s

deference to state water law. See United States v.

New Mexico, 438 U.S. 696, 714, 98 S. Ct. 3012, 75

L. Ed. 2d 1052 (1978) . . . see also United States v.

Rio Grande Dam & Irrig. Co., 174 U.S. 690, 703,

19 S. Ct. 770, 43 L. Ed. 1136 (1899) (state law

cannot be applied to destroy the federal govern-

ment’s right to water on its lands).

Gila River III, 989 P.2d at 744-745, 747.

Pursuant to Kimbell Foods, the Arizona Court consid-

ered whether the application of state law on percolating

water would frustrate specific objectives of federal pro-

grams. The Arizona court stated:

Where federal rights are at issue, a state court

may adopt state law as the rule of decision if to

do so would not frustrate or impair a federal

purpose. See United States v. Kimbell Foods,

Inc. 440 U.S. 715, 728-29, 99 S. Ct. 1448, 59 L. Ed.

2d 711 (1979). Such is not the case here. [Emphasis

added.]

Gila River III, 989 P.2d at 747.

After extensive analysis of how groundwater pump-

ing could interfere with the present and future water

rights of Indian and other federal reservations, the Ari-

zona Court determined: —

19

We therefore cannot conclude that deference to

Arizona’s law - and to the opportunity it

extends all landowners to pump as much

groundwater as they can reasonably use -

would adequately serve to protect federal

rights.

Gila River III, 989 P.2d at 748.

Kimbell Foods also discussed the need to consider the

extent to which application of a federal rule would dis-

rupt commercial relationships predicated on state law.

440 US. at 729, 99 S.Ct. at 1459. The Arizona Court

considered this issue in detail:

We recognize that our determination that

reserved water rights may encompass ground-

water threatens to disrupt the assumptions that

underlie state law uses. State law parties may

question how our present holding may be

squared with our decision in Gila River II to

retain Arizona’s traditional bifurcation of the

law of surface and groundwater. We are no less

cognizant now than when we decided Gila River

I] that Arizona’s agricultural, industrial, mining

and urban interests have accommodated them-

selves to the framework of Southwest Cotton.

[Citation omitted.] Yet there long has loomed

the need — sometimes noted, sometimes wished

away — for those same interests also to accom-

modate themselves to the water claims of the

vast federal land holdings that surround them.

[Citation omitted.] For state law Purposes in

Gila River II, we found reason to retain a bifur-

cated framework despite the hydrological mis-

conceptions upon which it rested. But federal

law does not permit us that option in deciding

the extent of federal reserved rights. As Leshy

20

and Belanger wrote in summary of Cappaert,

“For federal law, the question is one of hydrol-

ogy, not legal compartmentalization.” 20 Ariz.

St. L.J. at 734.

We do not underestimate the burden that

the State of Arizona will face in accommodating

federal reserved water rights within its water

resource management. Nor do we underestimate

the burden that the trial court will face in adju-

dicating the extent and relative priority of such

rights. Unless there is a comprehensive settle-

ment, however, we must heed the lesson that

“the best way out is always through.” To solve

the conflict and uncertainty that reserved rights

engender, we must quantify them, for we may

not ignore them.

Gila River III, 989 P.2d at 750.

The Arizona Court considered every element listed in

Kimbell Foods and determined that the Arizona water

rights adjudication statutes and Arizona water law made

percolating groundwater available, when necessary, to

fulfill federally reserved water rights.

C. THE ARIZONA SUPREME COURT DECISION

INTEGRATES FEDERAL GROUNDWATER

RIGHTS WITH EXISTING ARIZONA LAW.

Petitioners are incorrect in their claim that the Ari-

zona Court’s decision, as to Interlocutory Issue 4, fails to

integrate federal groundwater rights with existing state

groundwater law. The Arizona Court carefully and com-

prelwnsively integrated such groundwater rights; it sim-

ply did so in a manner disapproved of by the Petitioners.

21

The Arizona Court analyzed and rejected Petitioners’

claim that Indian and other federal reserved water rights

could be protected by nondiscriminatory access to a

shared resource. The Arizona Court explained:

A theoretically equal right to pump groundwa-

ter, in contrast to a reserved right, would not

protect a federal reservation from a total future

depletion of its underlying aquifer by off-reser-

vation pumpers. Cf. Washington v. Washington

State Com. Passenger Fishing Vessel Ass’n, 433

U.S. 658, 676 n. 22, 99 S. Ct. 3055, 61 L. Ed. 2d

823 (1979) (“[I]n light of the far superior

numbers, capital resources, and technology of

the non-Indians, the concept of the Indians’

‘equal opportunity’ to take advantage of a

scarce resource is likely in practice to mean that

the Indians’ ‘right of taking fish’ will net them

virtually no catch at all.”)

Gila River III, 989 P.2d at 748.

The Arizona Court did not, as alleged by Petitioners,

“guarantee a supply of water to federal reservations.”

Petition, page 17. The Arizona Court specifically stated:

We do not, however, decide that any particular

federal reservation, Indian or otherwise, has a

reserved right to groundwater. A reserved right

to groundwater may only be found where other

waters are inadequate to accomplish the pur-

pose of a reservation.

Gila River III, 989 P.2d at 748.

The Arizona Court also specifically stated that the

right of a federal reservation to protect its groundwater

from subsequent diversion is limited to “the extent such

protection is necessary to fulfill its reserved right,” and

22

found that the reserved right is “only that amount neces-

sary to fulfill the purpose of the reservation, no more.”

Gila River III, 989 P.2d at 750.

Petitioners are also incorrect in their allegation that

the Arizona court has extended the Winters Doctrine “on

heretofore unrecognized principles of general federal

common law.” Petition, page 17. The Arizona Court

applied the law, as it has existed for the last thirty years,

and considered the uniform federal decisions recognizing

a federally reserved water right to groundwater, includ-

ing Tweedy v. Texas Co., 786 F. Supp. 383 (D. Mont. 1968),

Gila River Pima-Maricopa Indian Community v. United

States, 9 Cl. Ct. 660 (1986), and United States v. Cappaert,

508 F.2d 313 (9th Cir. 1974).

III. THERE IS NO REAL OR INTOLERABLE CON-

FLICT BETWEEN THE LOWER COURTS.

This Court has stated:

Certiorari is granted . . . only in cases involving

principles the settlement of which is of impor-

tance to the public, as distinguished from that of

the parties, and . . . where there is a real and

embarrassing conflict of opinion and authority

between the Circuit Courts of Appeals.

National Labor Relations Board v. Pittsburgh S. S. Co., 340

U.S. 498, 502, 71 S. Ct. 453, 456, 95 L. Ed. 479 (1951).

23

A. THERE IS NO CONFLICT BETWEEN THE

FEDERAL COURTS AND THE ARIZONA

SUPREME COURT.

The decision of the Arizona Court, as to Interlocutory

Issue 4, is consistent with all federal court decisions that

have made a determination as to the applicability of the

Winters or federal reserved water rights doctrine to

groundwater. The District Court for the District of Mon-

tana examined this issue, in 1968, in Tweedy v. Texas

Company, 786 F. Supp. at 385, stating:

The Winters case dealt only with the surface

rights, but the same implications which led the

Supreme Court to hold that surface waters had

been reserved would apply to underground

waters as well. The land was arid — water would

make it more useful, and whether the waters

were found on the surface of the land or under

it should make no difference.

The Ninth Circuit Court of Appeals also examined this

issue in United States v. Cappaert, 508 F.2d at 317:

The Cappaerts contend, however, that the doc-

trine of implied reservation of water does not

apply to groundwater, but only to surface water.

Although these Supreme Court cases involved

only surface water rights, the reservation of

water doctrine is not so limited.

Two cases in the Ninth Circuit approved the

application of the doctrine of implied reserva-

tion of groundwater when water was needed to

accomplish the purpose of the reservation. Nev-

ada ex rel. Shamberger v. United States, 165 F.

Supp. 600 (D. Nev. 1958), aff’d on other

grounds, 279 F.2d 699 (9th Cir. 1960); Tweedy v.

24

Texas Co., 286 F. Supp. 383 (D. Mont. 1968). In

our view the United States may reserve not only

surface water, but also underground water.

The United States Claims Court stated, in Gila River

Pima-Maricopa Indian Community v. United States, 9 Cl. Ct.

at 699, that “[g]round water under the Gila River reserva-

tion impliedly was reserved for the Indians.” The District

court for the District of Washington held that Winters or

federally reserved water rights “extend to groundwater

as well as surface water.” Colville Confederated Tribes v.

Walton, 460 F. Supp. 1320, 1326 (1978). See also State of New

Mexico v. Aamodt, 618 F. Supp. 993 (D.N.M. 1985). In

Granite Reef Dam, the Arizona District Court also held

that the Winters or federal reserved water rights doctrine

extended to groundwater, and then made an independent

finding that the determination of the rights of Indian and

other federal reservations to percolating groundwater

was required by the Arizona general water rights adjudi-

cation statutes.

Respondents found no federal case holding that the

Winters doctrine does not extend to groundwater. Having

cited no such case, it may be presumed that the Ninth

Circuit Court of Appeals, the United States District

Courts for the Districts of Montana, Washington, New

Mexico and Arizona, the Arizona Supreme Court, and the

Petitioners also found no such case.

Petitioners are incorrect in their claim that the Ari-

zona Court has somehow created federal common law.

The Arizona Supreme Court did not extend the Winters

doctrine. Rather, the Arizona Court applied Winters v.

United States in conformity with all of the existing federal

court opinions that have examined the issue of reserved

25

rights to groundwater. The Arizona Court was correct in

its determination as to Interlocutory Issue 4, under fed-

eral law as well as under the law of the State of Arizona.

B. THERE IS NO SIGNIFICANT CONFLICT

BETWEEN STATE SUPREME COURTS.

The mere existence of a difference of opinion

between two state supreme courts is-not a sufficient

reason for this Court to grant a petition for writ of

certiorari. There is no significant or compelling conflict

between the opinions of the Arizona Supreme Court and

the Wyoming Supreme Court. There is no “real and

embarrassing conflict of opinion and authority” that

requires this Court’s time and review. As noted earlier,

state laws governing surface and underground waters,

and judicial recognition of the right to use those waters,

vary widely from state to state. The State of Wyoming

does not have the same water laws as the State of Ari-

zona. The fact that two state supreme courts, examining

an issue in light of their own state laws, might come to

differing conclusions is hardly a basis for intervention by

this Court. Other state courts can and will take both the

Arizona Court decision in Gila River III, and the Wyoming

Court’s decision in In re the General Adjudication of All

Rights to Use Water in the Big Horn System, 753 P.2d 76

(1988), for what they are — interesting opinions that may

or may not be persuasive in light of the individual state’s

water laws. It would not be a proper utilization of this

Court’s resources to serve as a “super nanny” for the

purpose of regulating state court interpretation of state

water law.

26

Proof of the ability of the individual states to make

an independent analysis, as to the issue of federal

reserved water rights and groundwater, is found in the

Arizona Court’s determination of Interlocutory Issue 4.

After carefully considering the Wyoming Court's decision

in Big Horn, the Arizona Court wrote:

[T]he Supreme Court of Wyoming recognized

that “[t]he logic which supports a reservation of

surface water to fulfill the purpose of the reser-

vation also supports reservation of groundwa-

ter.” [Citation omitted.] Yet the court declined to

find a reserved right to groundwater, stating in

explanation only that it had been cited no pre-

vious decision which did so. [Citation omitted.]

We can appreciate the hesitation of the Big

Horn court to break new ground, but we do not

find its reasoning persuasive. That no previous

court has come to grips with an issue does not

relieve a present court, fairly confronted with

the issue, of the obligation to do so.

Gila River III, 989 P.2d at 745.

Petitioners are incorrect in their claim that the deci-

sion of the Supreme Court of Montana, in Confederated

Salish and Kootenai Tribes v. Clinch, 56 Mont. 1356, 992 P.2d

244 (1999), demonstrates some “uncertainty” over the

issue of reserved rights in groundwater. Quite the oppo-

site, that opinion demonstrates that other state supreme

courts are able to read and consider both the decision of

the Supreme Court of Wyoming and the Supreme Court

of Arizona and, then, to make their own independent

decisions based on the unique facts and laws of their

states. It is also important to note that the Montana

District Court had already ruled, thirty years earlier, that

27

the reserved rights doctrine applied to underground as

well as surface waters. See Tweedy v. Texas Company, 786 F.

Supp. 383.

Justice Stevens, writing concerning the denial of cer-

tain petitions for writs of certiorari, advised:

I believe that the further consideration of the

substantive and procedural ramifications of the

problem by other courts will enable us to deal

with the issue more wisely at a later date. There

is presently no conflict of decision within the

federal system. During the past five years, two

state supreme courts have [come to differing

conclusions concerning prosecutors’ use of pre-

emptory challenges]. . . . [M]y judgment is it is a

sound exercise of discretion for the Court to

allow the various States to serve as laboratories

in which the issue receives further study before

it is addressed by the Court.

McCray v. New York, 461 U.S. 961, 961, 103 S. Ct. 2438,

2438-2439, 77 L. Ed. 2d 1322 (1983).

Here, there appears to be no federal court decision

that differs from the Arizona Supreme Court's determina-

tion on Interlocutory Issue 4. The only differing state

supreme court decision indicated that it agreed with the

logic that the Arizona Supreme Court used as the basis

for the Arizona decision, but was unwilling to be the first

to address the issue. Therefore, there is no real or signifi-

cant conflict between the nation’s courts that requires this

Court's intervention.

28

IV. THE ISSUES BEFORE THE ARIZONA SUPREME

COURT, CONCERNING INTERLOCUTORY

ISSUE 4, ARE TOO PRELIMINARY TO WAR-

RANT REVIEW BY THIS COURT.

While a state or federal court decision may be suffi-

ciéntly final to meet the jurisdictional requirements for a

writ of certiorari, the decision may be too uncertain or

preliminary to warrant this Court’s granting such peti-

tion. That is the situation in this case. It is important, of

course, to point out that the Arizona Court’s determina-

tion as to Issue 4 is interlocutory. It is more important to

note the factors in the decision itself which evidence the

Arizona Supreme Court’s recognition that neither it, nor

the trial court, is finished with this issue - and that

further proceedings will be necessary to determine

whether Interlocutory Issue 4 will ever have a real effect

on any Indian or other federal reservation, or on any non-

federal water user.

The Arizona Court wrote:

For the foregoing reasons, we hold that the trial

court correctly determined that the federal

reserved water rights doctrine applies not only

to surface water but to groundwater. We decide

this issue in the abstract at this time as a neces-

sary step in determining the scope of interests to

be encompassed by this adjudication. We do not,

however, decide that any particular federal res-

ervation, Indian or otherwise, has a reserved

right to groundwater. A reserved right to

groundwater may only be found where other

waters are inadequate to accomplish the pur-

pose of a reservation. To determine the purpose

of a reservation and to determine the waters

29

necessary to accomplish that purpose are inev-

itably fact-intensive inquiries that must be made

on a reservation-by-reservation basis.

Gila River III, 989 P.2d at 739.

In a footnote, the Arizona Court reiterated that

“[uJntil federal rights are quantified, it cannot be deter-

mined which if any of the tribes are entitled to such

relief.” 989 P.2d at 749 n. 12. The Arizona Court also

noted that its decision on the definition of subflow (Inter-

locutory Issue 2, briefed and argued but not yet decided)

could conceivably be broad enough to protect the rights

of some or all of the federal reservations. 989 P.2d at 749.

The decision on Interlocutory Issue 2 also affects whether

Interlocutory Issue 4 will ever have a real-world effect.

At this time, no one knows if this issue is simply an

interesting academic question that will never have an

actual application. This Court should refuse to grant the

Petition for Writ of Certiorari until it has been deter-

mined that the ruling actually affects some specific fed-

eral reservation and some actual non-federal water user.

The Arizona Supreme Court also recognized that

questions of the effectiveness of the Arizona Groundwa-

ter Management Code must be answered before a deter-

mination can be made as to whether Interlocutory Issue 4

would have any impact in the case of a specific reserva-

tion. The Arizona Court wrote:

We similarly approach [rejecting as premature]

the state law parties’ argument that federal

reserved rights holders may be adequately pro-

tected against groundwater depletion by the

1980 Groundwater Management Code, which

30

restricts application of the reasonable use doc-

trine and mandates conservation measures in

some parts of Arizona. . .. Whether any particu-

lar reservation receives adequate protection of

its reserved water rights through the combina-

tion of Arizona’s common and statutory law

remains to be determined.

Gila River III, 989 P.2d at 749 n. 13.

Until the specific facts concerning individual reserva-

tions have been analyzed in light of the provisions of the

Arizona Groundwater Management Code, the Arizona

Court’s ruling on Interlocutory Issue 4 remains a matter

of academic interest, without a current real-world appli-

cation.

V. CONCLUSION —

There are no compelling reasons that would justify

granting the Petition for a Writ of Certiorari filed herein.

Therefore, the Gila River Indian Community respectfully

requests that the Court deny this Petition.

- Respectfully submitted,

Ropney B. Lewis

Counsel of Record

STEVEN J. W. HEELEy

JoHN T. HeEstanpD

James D. Hitt

RutH E. Koester

Gila River Indian Community

5002 N. Maricopa Road, Box 5090

(520) 796-1344

Attorneys for Respondent

Gila River Indian Community

A-la

EXPLANATORY DATA

The Arizona Department of Water Resources

(“ADWR”) divided the state into a number of water

basins in its Arizona Water Resources Assessment of August

1994. The ADWR water basins are based on interrelated

hydrology — surface and underground water — within

distinct land areas. The size and shape of a water basin is

determined by the geology -of the region.

The Arizona Department of Water Resources Assess-

ment, Volume I, Inventory and Analysis, August 1994,

pages 13, 14, 139, 141, 153, 155, 173, 175, 192, and 194,

provided the data for the water basin map, the water

basin designation, the population data per water basin,

and the water supply data per water basin. Population

figures of less than 100 people were rounded up to 100.

Water use figures of less than 1000 acre-feet were

rounded up to 1000 acre-feet.

A determination was made as to whether a particular

ADWR water basin contained federal reserved lands (fed-

eral lands that have been designated as a federal reserva-

tion, such as an Indian Reservations, Military

Reservations, National Parks, National Monuments, etc.).

Bureau of Land Management lands that have not been

designated as federal reservations, with potential Win-

ters/reserved water rights, were not considered.

The ADWR water basins that are shaded purple con-

tain federal reservations that have surface water

resources available to them, or would have had surface

water resources available but for upstream and/or neigh-

boring development and depletion. If an ADWR water

basin has or had surface water resources, and is upstream

iN

A-1b

from a federal reservation that has or had surface water

resources available to it, then this water basin is also

shaded purple. An exception was made for any ADWR

water basin that was 100% federal land, and was not

upstream from another basin. [This water basin designa-

tion does not attempt to determine whether any of the

federal reservations have any actual water rights. It only

designates that the water basin does or did contribute to

surface water that was or is available for use by the

federal reservations, if such a water use right should be

determined to exist.] ADWR water basins that contain

federal reservations with actual or potential surface water

resources provided from the Colorado River were not

designated as purple because their water rights are gov-

erned by Arizona v. California, 373 U.S. 546, 83 S. Ct. 1468,

10 L. Ed. 2d 542 (1963). The ADWR water basins that are

shaded purple are subject to the Arizona Supreme Court

determination on Interlocutory Issue 5; i.e., that federal

reserved rights holders are entitled to greater protection

from groundwater pumping than are water users who

hold only state law rights.

The ADWR water basins that are shaded green con-

tain federal reservations that do not have surface water

resources available to them, and did not have such

resources available in the past. For these federal reserva-

tions, underground water is the only water resource

available. If an ADWR water basin consisted totally of a

federal reservation, it was not shaded green. The ADWR

water basins that are shaded green are subject only to the

Arizona Supreme Court determination on Interlocutory

Issue 4; i.e., that federal reserved water rights extend to

groundwater (underground water) that is not subject to

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prior appropriation under Arizona law. The water basins

that are shaded green have no water resources available

that would be subject to the Arizona Supreme Court's

determination on Interlocutory Issue 5.

The ADWR water basins that are shaded yellow do

not have a federal reservation and are not upstream of a

federal reservation or, if they do have a federal reserva-

tion, that federal reservation’s water use rights are gov-

erned by Arizona v. California, or are totally federally-

owned.

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20

c. Petitioners also claim that the Arizona Supreme

Court’s decision warrants review because it is.in con-

flict with the Wyoming Supreme Court’s decision in In

re General Adjudication of All Rights to Use Water in

the Big Horn River, supra. See 99-1388 Pet. 28- 29; 99-

1389 Pet. 11-12; Arizona Response 13. The Wyoming

Supreme Court acknowledged that “(t]he logic which

supports a reservation of surface water to fulfill the

purpose of the reservation also supports reservation of

groundwater.” 753 P.2d at 99. It nevertheless ruied,

contrary to that logic, that the reserved water doctrine

“does not extend to groundwater.” Jd. at 100. The

Wyoming Supreme Court reached that result because it

could find no case expressly holding that federal re-

served water rights extend to groundwater. See id. at

99-100.

The Arizona Supreme Court properly rejected the

Wyoming Supreme Court’s reasoning. The Arizona

Supreme Court stated:

We can appreciate the hesitation of the Big Horn

court to break new ground, but we do not find its

reasoning persuasive. That no previous court has

come to grips with an issue does not relieve a

present court, fairly confronted _ the issue, of

the obligation to do so.

Pet. App. A17.2 The Arizona Supreme Court has now

provided a persuasive decision squarely holding that

broadly, then the issue of whether federal reserved rights extend

to percolating groundwater may turn out to be relatively unimpor-

tant.

8 The Arizona Supreme Court also noted that there is more

precedential support for its result than the Big Horn decision sug- _

gested. See Pet. App. Al6 n.6, A17-A20 (discussing iranian A

cases).

21

the reserved water rights doctrine extends to ground-

water. It is therefore possible that, if the Wyoming

Supreme Court were faced with the issue again, it

might well reconsider its decision and reach the

“logical” outcome. At a minimum, the apparently diver-

gent decisions of the Arizona Supreme Court and the

Wyoming Supreme Court—which reflect the views of

only two of the fifty States and have not yet resulted in

any practical consequences for any water user—do not

give rise to a mature conflict that would warrant this

Court’s review. Accordingly, even if the Arizona Su-

preme Court’s decision were a final judgment for

purposes of 28 U.S.C. 1257(a), it would not present a

matter warranting this Court’s review at this time.

| CONCLUSION

The petitions for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

LOIS J. SCHIFFER

Assistant Attorney General

WILLIAM B. LAZARUS

ANDREW MERGEN

TODD AAGAARD

Attorneys

MAY 2000