# Opposition Brief — Phelps Dodge Corp. v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1058%3A06

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2000
- **Citation:** 530 U.S. 1250

## Text

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

A-lic

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.

SyBry JV AA JO BO DIU Aq suojBey Jo uopeujuueeg pur SUOPeo LIPO
P66L Bniny pusulssassy saainosey Jayeya GUuoZpYy WAAdY Wo} eseg dey

G10 p senssy Aq pepeyetun seeny oy

7 anss Ajuo Aq popayy Ayepuaiod seary me
G anssj Aq
papayy Ayequajog seany Mt

A-2

suoibey 21H0;o1pAH S,euoZHy UO
c pur p Sanssj jo oeduy] [eHUs}0Od

A-3

766] ‘IsNBny soomMosoy JoyeA\ JO youryedsag euoziuy Ag juaussassp
SIDMNOSAY 4210 DUOZLAY BW} WOH syysry Joye JO 2IGO DTAD 43 Aq popiduroD eyeq

%ol

314094 000°96 ~-S 40 » Sonssy
Aq poyoyeuy) uonyeindog F

a1doaq 009°61

-- p anssj ATUO Ag poyoyyy
Ajyeusjog uojeindog gm

a1dood 00S“08L‘€

-- ¢ onss] Aq poyoayy
Ajyeruajog uoeindog m

%L6

ajdo0og S,BuOZLIY UO
S pue p sonssy Jo jouduy jeusj0g

A-4

7661 ‘Isn3ny ssomosoy J9}eA\ JO yUourTedaq euoziuy Ag juawssassy
SADANOSAY 4aJDY DUOZIAY 3G} WOF syyBry 193e@A\ JO 30YJO DID oy} Aq popiduos evyeq

%oC

S,BUOZLIYV U0 ¢ pue pf Sanss] Jo }Dudu] [eENUDI0g

cence eee ee eee eeren eee

oan

994 WIV 0OO'TIL -- $10 p
sonss] Aq poyooyyeuy ssp J9IeM |

Joo

29V 000‘60I -- p Onssy ATUO Aq
poyooypy Alyeusj0g osf) JOE

}O0,J

SDV 000*EH8‘S -- ¢ ansst Aq
poyozy Aljenusjog asf JOE

“%oll

“%oL8

IS) ANB

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1058%3A06. Public record. Not legal advice.