Opposition Brief — Phelps Dodge Corp. v. United States

Nos. 99-1388, 99-1389

~

IN THE a

Supreme Court of the United States

PHELPS DODGE CORPORATION, et ai.,

Petitioners,

-and-

SALT RIVER VALLEY WATER

USERS’ ASSOCIATION, et ai.,

Petitioners,

Vv.

THE UNITED STATES OF AMERICA, et ai.,

Respondents.

ON PETITIONS FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF ARIZONA

BRIEF IN OPPOSITION FOR RESPONDENTS

THE SAN CARLOS APACHE TRIBE,

THE TONTO APACHE TRIBE AND

THE YAVAPAI-APACHE NATION

Joe P. SparkKs*

KEVIN T. TEHAN

JOHN H. RYLEY

SPARKS, TEHAN & RYLEY, P.C.

Attorneys for Respondents

The San Carlos Apache Tribe,

The Tonto Apache Tribe and

The Yavapai-Apache Nation

7503 First Street

Scottsdale, Arizona 85251

* Counsel of Record (480) 949-1339

159902 @J Counsel! Press LLC

(800) 274-3321 + (800) 359-6859

TABLE OF CONTENTS

Page

Fable OF Cited AmiOrIOS 56 oon cis ieee ce sees iil

ey Pee Per Tr eee 1

Parties To This Brief In Opposition ............. 5

A. The San Carlos Apache Tribe. ........... 5

B. Tonto Apache Tribe. ........ ree ree 6

C. Yavapai-Apache Nation. ................ 7

ee eer eee 8

A. The Gila River Adjudication. ............ 8

B. The Proceedings Below. ...... ee eewe 8

Summary Of Argument ............. Lbtedoxwas 9

Reasons For Denying The Writ ................ 13

I. The Court Lacks Jurisdiction Because The

Decision Is Not A Final Judgment Under

Se eee RO, NbN d Shi ie Weer 13

A. The Arizona Supreme Court’s Decision

in Gila River IIT is Not a Final Judgment

Under 28 U.S.C. § 1257(a). ......... 13

B. The Decision Is Interlocutory. ....... 16

il

Contents

Page

II. The Court Should Not Grant Certiorari

Because The Gila River II] Decision Is

ADoteent Te WOO. vc cc ea ncans sucess 19

III. The Arizona Supreme Court Decision

Conforms With The Previous Decisions Of

This Court Regarding Federal Reserved

Water RIM. «6 occ cic ccsnrvesses<s ee

A. The Gila River III Court’s Holdings

With Respect to Issue 4 and 5. ....... 20

B. The Gila River III Court’s Decision

Follows This Court’s Previous Decisions

Regarding Federal Reserved Water

Rights and Therefore Does Not Erode

ee re ee 22

C. The Decision Is Consistent With The

Decisions of Other Federal Courts. ... 23

D. The Gila River III Court Correctly

Deckied Mee Gy os ch ch scawe votes 26

IV. Conflicts With Other Cases Do Not Exist To

Provide Reason To Grant Certiorari. ...... 27

Cometeaiee. sis i. 6 nkcdhvedeeeee Lees 29

ili

TABLE OF CITED AUTHORITIES

Page

Cases:

Arizona v. California, Report of the Special Master,

IN IN ra ca acne & bree WW dws 05 0c 8

Arizona v. California, 373 U.S. 546 (1963) ......

Petes ch ceew en whe deat nak 3, 8, 11, 18, 22, 24, 27

Arizona v. California, 376 U.S. 340 (1964) ...... 26

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

Ck cs ied nish ok wa 1, 2, 3, 4, 5, 9, 10, 29

Cappaert v. United States, 426 U.S. 128 (1976) ... passim

Colorado River Water Conservation District v.

United States, 424 U.S. 800 (1976) ........... 5

Confederated Salish and Kootenai Tribes v. Clinch,

ee ge eT) ee ee 27, 28

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

ie Nit i:t wave 2xcn.a.0. clark’ 10, 13, 14, 15, 16, 18, 25

Federal Power Comm'n. v. Oregon, 349 U.S. 435

ES wie 5 Anse AAS ChecE khs bode 25

Flynt v. Ohio, 451 U.S. 619 (1981) ............. 10, 16

Gila River Pima-Maricopa Indian Community v.

United States, 9 Cl. Ct. 660 (1986) ........... 21, 24

iv

Cited Authorities

Page

Grays Harbor Logging Company v. Coats-Fordney

Logging Company, 243 U.S. 251 (1917)....... 10, 16

In re: the General Adjudication of All Rights to Use

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

Fey Ss a Saw d ob kg cada eeenawens 27

In re the General Adjudication of All Rights to Use

Water in the Gila River System and Source,

ore ge gh fi. errr yer errr ore Oe

In re the General Adjudication of all Rights to Use

Water in the Gila River System and Source,

SSD P26 139 (AM. TSF) ois vc cvrvcncvsvss passim

In the Matter of the Application for Beneficial Water

Use Permit Nos. 66459-76L, Ciotti, et al., 923

eee: ee eee 28

In the Matter of the Rights to the Use of the Gila

River; $30 P.2d 442 (199Z) ... 0 wsesccese 1, 5, 8, 30

Jefferson v. City of Tarrant, 522 U.S. 75 (1997) ..10, 16

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

tte RE, er ere 3

Kansas v. Colorado, 514 U.S. 673 (1995) ....... 26

Landmark Communications, Inc. vy. Commonwealth

of Virginia, 435 U.S. 829, 98 S. Ct. 1535, 56

ee Fe Peer Terre rp ere ee 3

Vv

Cited Authorities

Page

Matter of Determination of Conflicting Rights To

The Use of Water From The Salt River Above

Granite Reef Dam, 484 F. Supp. 778 (1980), rev'd

on other grounds, 668 F.2d 1093 (1982), rev'd,

463 U.S. 545 (1983), vacated 721 F.2d 1187

NEE oa iver hi ack eemecerels ee eee 23, 24

Mercantile National Bank at Dallas v. Langdeau,

SER WE Ee Cs vc ohne eae ew leaes 15

Minnick v. California Department of Corrections,

OGe SI. TGS CITGO v5 ve snk svnsdeus 10, 16, 19, 20

Moses H. Cone Hospital v. Mercury Construction

Cap, SUP ES. 8 ee 5h bd dao eens 5

Nebraska v. Wyoming and Colorado, 515 U.S. 1

CFUOD i654 vcenea ed pecdeke leas orien 26

New Mexico v. Mescalero Apache Tribe, 462 U.S.

ST CRUE 6 ks Kine 008 eee eee 5

Park Center Water District v. United States, 781 P.2d

90 (Colo. 1989), cert. den., 494 U.S. 1079 (1990)

Wis 6 slomswh'ee Warde ede POR aed eta 25

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

Ce et. re re 3

Radio Station WOW, Inc. v. Johnson, 326 U.S. 120

SD x36 fk anc ecebeee 10, 13, 14, 16, 19

vi

Cited Authorities

Page

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

ES hx. Gk SRS CEO E) 6 oaks seks seetkend 3

Republic Natural Gas Co. v. Oklahoma, 334 U.S.

GE GUE eo wissk da relay Saves Be euR 10, 13, 16

Rescue Army v. Municipal Court of Los Angeles,

ee es, eee ree 11, 19, 20

Richfield Oil Corp. v. State Board, 329'U.S. 69

CTPEED 6 ise ai arene eee 27

San Carlos Apache Tribe v. Superior Court, 972 P.2d

SFP CIE Bi Sie ee 10

San Diego Gas & Electric v. City of San Diego,

S50 TS GOP CGS 6 ini as a ee 10, 16

State of Nevada v. United States, 165 F. Supp. 600

ee Rr re er rn Me Nr 25

Tweedy v. Texas Company, 286 F. Supp. 383 (Mont.

SOG) isaivccaseeeakeeaie sei eae 24

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

RPO) Si vwcdenes baa $45404s60 ee 4, 25

United States v. Gila Valley Irrigation District,

ee i. | errr errr ry rer 12

vii

Cited Authorities

Page

United States v. Gila Valley Irrigation District,

920 F. Supp. 1444 (D. Ariz. 1996) ........... 8

United States v. J. Ed Smith, 625 F.2d 278 (9th Cir.

SEG acite baad elated delet ee 2

United States v. Little Lake Misere Land Co.,

GEe Ue SPREE ok alk eR 22

United States v. New Mexico, 438 U.S. 696 (1978)

CkAde CASA Ree AE ER e ee el enk ceeeial 4, 18, 19, 23

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

ce tr ee ee 21

United States v. Santa Fe Pacific Railroad Co.,

Par Ce SOE ins ok odo ee deena dc 5

United States v. Superior Court, 697 P.2d 658 (1985)

Rts ey 6k Wik dks Ce Rw ae onde ae eed ia 10

Wilson v. Omaha Indian Tribe, 442 U.S. 653 (1979)

Pie din de ce SW be wal Nah Eek eee bate 21

Winters v. United States, 207 U.S. 564 (1908) ....

ise ha ceeeeh ak hh eee ken ans 11, 18, 22, 23, 24, 29

Wyoming v. United States, 488 U.S. 1040 (1989) ... 27

Vili

Cited Authorities

Page

Statutes:

oe en as OO. 86 aen tee iia 5

PURE 41M. 2. ods 4, 10, 11, 13, 27, 28, 30

eM | errr ee, Pee ee ee 5

Pe CET FE 6 6c caWiockeseaunkoues 6

Rule: |

United States Supreme Court Rule 10 .....:..... 27

Other Authorities:

Apache Treaty, July 1, 1852, 10 Stat.979 ....... 5

In the Treaty of Guadalupe Hidalgo, 9 Stat. 922,

Ae er Or ee re ree 5

|

INTRODUCTION

Respondents are the San Carlos Apache Tribe, the Tonto

Apache Tribe and the Yavapai-Apache Nation, all federally

recognized Indian tribes located on federal reservations in

Arizona (herein the “Apache Tribes”).' The Apache Tribes’ Brief

in Opposition responds to the Petitions filed by Phelps Dodge

and Salt River Project.’

The Respondents Apache Tribes were before this Court in

Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1983) (herein

“San Carlos”). Seventeen years later, not a single water right

has been adjudicated in the Arizona stream adjudication.’

1. The law firm of Sparks, Tehan and Ryley, P.C., undersigned

counsel has represented the Apache Tribes since 1974 in these matters

and was designated by the Arizona Supreme Court as lead counsel to

represent Arizona Indian tribes in Jn re the General Adjudication of all

Rights to Use Water in the Gila River System and Source, 989 P.2d 739

(Ariz. 1999) (herein “Gila River IIT’). See also In the Matter of the

Rights to the Use of the Gila River, 830 P.2d 442 (1992) (“Gila River

I’) (Interlocutory Issue 1) (trial court procedures approved, including

service by mail); and Jn re the General Adjudication of All Rights to

Use Water in the Gila River System and Source, 857 P.2d 1236 (1993)

(“Gila River IT’) (Interlocutory Issue 2) (the “subflow” issue, remanded

to trial court with second decision by the Arizona Supreme Court now

pending).

2. See Petitions for Writ of Certiorari filed by, Phelps Dodge

Corporation, et al. (herein “Phelps Dodge”) v. United States, et al.,

No. 99-1388; and Salt River Valley Water Users’ Association, et al.

(herein “Salt River Project”) v. United States, et al., No. 99-1389. The

Phelps Dodge and Salt River Project petitions seek review by this Court

of Issue 4 decided by the Arizona Supreme Court in Gila River III, i.e.,

that federal reserved rights extend to groundwater to the extent necessary

to fulfill the purposes of a reservation.

3. Moreover, there has been no adjudication of any federal or

State water rights in Arizona since the first general stream adjudication

proceeding was initiated in 1974. See “Phelps Dodge Petition” at p. 5:

“The magnitude of this case and the significance of the issues it raises

have resulted in many years of litigation without any final adjudication

of specific water rights.”

2

The Apache Tribes appeared and have faithfully participated

in the Arizona proceedings. Jd. at 545 n.17. As instructed by

this Court in San Carlos, the Arizona courts have honored the

“solemn obligation to follow federal law.” Jd. at 571.

Petitioners complain here that the Supreme Court of

Arizona has applied federal law in a preliminary decision that

Indian reservations may have a reserved right to groundwater

where the trial court finds that surface water is inadequate to

accomplish the purposes for which the reservation was

established. They argue that state law should have been adopted

as the federal rule.

Arizona’s groundwater law defies hydrological reality.

See United States v. J. Ed Smith, 625 F.2d 278, 280 (9th Cir.

1980) at n.3. It is based upon an “artifice ... that rests on a

hydrologic misconception. 175 Ariz. at 389, 857 P.2d at 1243.”

Gila River III at 743. The Arizona Supreme Court observed

that “conforming their law to hydrological reality, most prior

appropriation jurisdictions by now have abandoned the

bifurcated treatment of ground and surface water supplies.”

Id. at 744. Arizona has not. See also Gila River II, 857 P.2d at

1240.

Petitioners desire to apply this antiquated “political”

hydrology to water rights for federal reservations. Gila River

III at 747.

The Arizona Supreme Court recognized that some Indian

reservations in Arizona “depend for present and future survival

substantially or entirely upon pumping of underground water.”

Gila River II] at 746. It has seen rivers pumped dry and Indian

reservations “entirely dewatered” by off-reservation pumping

under Arizona’s “reasonable use” doctrine. /d. at 748.

In San Carlos, the Court cautioned that:

. . any state-court decision alleged to abridge Indian

water rights protected by federal law can expect to

receive, if brought for review before this Court, a

particularized and exacting scrutiny commensurate

3

with the powerful federal interest in safeguarding

those rights from state encroachment.

San Carlos at 571.

The Arizona Supreme Court reviewed state law and the

history of the depletion of flowing streams and groundwater in

Arizona, and determined that State law is inadequate to protect

federal rights where groundwater is necessary to fulfill the

purposes for which federal reservations were established. This

Court honors the decisions of the States’ highest court when

interpreting state law. Johnson v. Frankell, 520 U.S. 911, 916,

117S. Ct. 1800, 1894, 138 L. Ed. 2d 108 (1997); Poulos v. New

Hampshire, 345 U.S. 395, 402, 73 S. Ct. 760, 765, 97 L. Ed.

1105 (1953); Landmark Communications, Inc. vy.

Commonwealth of Virginia, 435 U.S. 829, 838, 98 S. Ct. 1535,

1541, 56 L. Ed. 2d 1 (1978); and Reitman v. Mulkey, 387 U.S.

369, 378-379, 87 S. Ct. 1627, 1633, 18 L. Ed. 2d 830 (1967).

The Arizona Supreme Court cited the reasoning of this

Court in Arizona v. California in finding a reserved right to

groundwater where this Court declared it is:

“impossible to believe” that those who created the

Colorado River Indian Reservation “were unaware

that most of the lands were of the desert kind —

hot, scorching sands — and that water from the

[Colorado River and its tributaries} would be

essential to the life of the Indian people and to the

animals they hunted and the crops they raised.”

Arizona v. California, 373 U.S. at 599. The

reservations considered in those cases depended for

their water on perennial streams. But some

reservations lack perennial streams and depend for

present or future survival substantially or entirely

upon pumping of underground water. We find it no

more thinkable in the latter circumstance than in the

former that the United States reserved land for

4

habitation without reserving the water necessary to

sustain life.

Gila River III at 746.

The Arizona decision is necessarily “a preliminary

judgment on the question of Indian water rights.” San Carlos at

569.

Observing the Court’s reasoning in United States v. New

Mexico, the Arizona court found a reserved right to groundwater

could only be found where other waters are inadequate to

accomplish the purpose of a reservation. “To determine the

purpose of a reservation and to determine the water necessary

to accomplish that purpose are inevitably fact-intensive inquiries

that must be made on a reservation-by-reservation basis.” United

States v. New Mexico, 438 U.S. at 700. Gila River III at 748.

Gila River III is abstract:

In Part IT] we declined in the abstraci to declare a

standard for determining the purpose of a

reservation. We here decline in the abstract to define

how imminent a threat to a reservation’s essential

waters must be in order to warrant injunctive relief.

The latter standard, like the former, should be

grounded in the bedrock of the facts.

Gila River III at 70S.*

Eventually, after a trial on the merits concerning a specific

reservation, these intimately related federal questions will be

decided in a factual setting and reviewed by the Arizona Supreme

Court. A “final judgment” has long been the standard of the

Court in these cases. If Petitioners can show specific harm in

violation of federal law under a final judgment at that time, this

Court would have jurisdiction under 28 U.S.C. § 1257(a).

4. In United States v. Cappaert, a standard was crafted that

protected the purpose for which Devil’s Hole National Monument was

established after extensive fact findings to determine the measures

necessary to protect the federal purpose. See also San Carlos at 571.

5

At this point in the Arizona proceedings, Gila River II]

merely assures that state groundwater pumpers are on notice’

and are participating in the adjudication as is necessary to

preserve the comprehensive requirements of the McCarran

Amendment’ and to avoid piece-meal adjudication.’ Colorado

River Water Conservation District y, United States, 424 U.S.

800, 813 (1976) (herein “Colorado River”). Gila River I.

PARTIES TO THIS BRIEF IN OPPOSITION

Respondents, San Carlos Apache Tribe, Tonto Apache Tribe

and Yavapai-Apache Nation (“Apache Tribes”) are parties in

“In Re The General Adjudication Of All Rights To Use Water

In The Gila River System And Source,” Consolidated Case Nos.

W1-4.

The Apache Tribes are federally recognized pursuant to

the Apache Treaty, July 1, 1852, 10 Stat. 979, and Section 16 of

the Indian Reorganization Act of 1934, 25 U.S.C. § 461, er seq.

The Reservations of the Tribes are all within their original

aboriginal homelands under the Apache Treaty. See United

States v. Santa Fe Pacific Railroad Co., 315 U.S. 339 (1941),

New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 337

(1983). In the Treaty of Guadalupe Hidalgo, 9 Stat. 922,

Feb. 2, 1848, the Apache Tribes were to be free and secure in

their tribal homelands. See id. Articles VIII, IX, XI, XXI.2.

A. The San Carlos Apache Tribe.

The San Carlos Apache Reservation (herein “the

Reservation”) was established by Executive Orders of President

Grant on November 9, 1871, and December 14, 1872. There

are approximately two thousand eight hundred and fifty-five

(2,855) square miles within the current Reservation (1,827,200

5. See Gila River 1, Gila River Ili at 748.

6. The McCarran Amendment, 43 U.S.C. § 666 (herein “McCarran

Amendment”), Arizona v. San Carlos, id. at 565 n.16, 569, 570;

Colorado River Water C. onservation District v. United States, 424 U.S.

800, 819 (1976).

7. Moses H. Cone Hospital v. Mercury Construction Corp., 460

U.S. 1, 16 (1983).

6

acres). The United States holds title to the lands within the

Reservation in trust for the benefit of the San Carlos Apache

Tribe. The Reservation is in Gila, Graham, and Pinal Counties

in eastern Arizona. Tribal membership is approximately 12,000.

The Reservation is i). the Upper Salt River, the Upper Gila

River, and the San Pedro River “subwatersheds” of the Arizona

General Stream Adjudication W-1 through W-4. Most major

surface streams in central Arizona run through, border, arise

on, or are tributary to surface and underground water on the

Reservation, including without limitation, the Black River, Salt

River, the Gila River, Ash Creek, Willow Creek, Eagle Creek,

Bonita Creek, Deer Creek, Salt Creek, and San Pedro River.

The San Carlos Apache Reservation is surrounded on three

sides by federal land administered by the National Forest and

Bureau of Land Management. The north boundary of the San

Carlos Apache Reservation is the south boundary of the White

Mountain Apache Reservation. The San Carlos and White

Mountain Apache Reservations were once one, but later divided

along the Black and Salt Rivers into the two separate

Reservations which exist today.

The Gila River is the only stream with a Decree (Globe

Equity No. 59) which purports to adjudicate certain rights on

the San Carlos Reservation. That Decree provides only 6,000

acre-feet of water for 1,000 acres of irrigation along the Gila

River in the San Carlos Apache Reservation, with a priority

date of 1846. All residential, governmental, and commercial

water use on the Reservation is from underground wells. There

is no present substantial surface water use or development on

the Reservation, with the exception of stockwatering. »ildlife,

and recreation.

B. Tonto Apache Tribe.

The Tonto Apache Tribe is a federally recognized Indian

Tribe pursuant to P.L. 92-470, 86 Stat. 783, October 6, 1972.

The Tonto Apache Tribe consists of over 100 members on the

85 acre Tonto Reservation located south of Payson, Arizona in

Gila County. One-half of the Reservation is in the upper Salt

7

sub-watershed and one-half of the Reservation is in the upper

east Verde sub-watershed of the Arizona General Stream

Adjudication W-1 through W-4.

The Tonto Apache Reservation is surrounded on three sides

by the Tonto National Forest and on the north by the Town of

Payson. The Reservation has no surface water supply. The Tribe

relies upon groundwater from a well which was developed by

the United States to serve the Reservation. The parcel of land

where the Tribal well is located was later traded into private

ownership by the National Forest. To protect the Tribal water

supply, federal deed restrictions were placed on the patent of

property by the United States which prohibits the private owner

from polluting the groundwater and from withdrawing

groundwater from the land around the well site. Nearby pumping

has reduced the production of the federal well which is now

inadequate to meet the present needs of the Tonto Apache

Reservation.

C. Yavapai-Apache Nation.

A Reservation was established by Executive Order on

October 3, 1871, ten miles on both sides of the Verde River for

forty-five miles, which Reservation was to serve as a permanent

tribal homeland for both Tribes “as long as the grass shall grow

and the stream shall flow.” The Yavapai-Apache Nation has

approximately 2000 members.

In the late winter of 1875, both Tribes were forcibly

removed from the Verde Valley In “Trail of Tears.” On April 23,

1875, the Reservation was terminated by Executive Order. Tribal

members were forced through the snow nearly 180 miles to the

San Carlos Reservation where they were incarcerated. Many

men, women, and children perished on the way. Some escaped

on route and returned to the Verde Valley. The remaining

survivors walked back from San Carlos to the Verde Valley

beginning In 1886. Many arrived after the start of construction

of Roosevelt Dam at the confluence of the Salt River and Tonto

Creeks In 1909. They were permitted to leave San Carlos to

work on the Dam, and then returned home to the Verde Valley.

8

When the Tribes returned from San Carlos, either by escape

or permission, they found their homes, farms and communities

occupied or dominated by non-Indians. Nevertheless, the Tribal

members persisted and established new camp and farm sites.

Over a period of years a number of parcels of land occupied by

Tribal members were acquired in trust either by the United States

by statute, gift or exchange.

The Yavapai-Apache Reservation consists of several parcels

of lan! totaling approximately 653 acres located in the Valley

of the Verde River, Yavapai County, Arizona. Reservation parcels

of land are located near Clarkdale, near Camp Verde, near

Middle Verde, near Rimrock and at the I-17 interchange for the

Montezuma Castle National Monument. Each parcel has a

different acquisition date ranging from 1909 to 1974.

The Yavapai-Apache Nation has approximately 2000

members. The Nation relies upon surface water from the Verde

River for irrigation. It is totally dependent upon groundwater

for all domestic, municipal and commercial purposes. Both

surface water and groundwater are declining in the Verde Valley

as a direct result of groundwater pumping in the Big Chino

Valley, the Little Chino Valley near Prescott, Arizona, and

pumping in the Verde Valley.

STATEMENT OF THE CASE

A. The Gila River Adjudication.

“The Gila River System is over appropriated; the supply of

water presently available and which seems likely to be available

in the future is not sufficient to satisfy the needs and demands

of existing projects.” Arizona v. California, Report of the Special

Master, December 5, 1960, p. 325; see also Gila River I at 232

and United States v. Gila Valley Irrigation District, 920 F. Supp.

1444, 1448 (D. Ariz. 1996).

B. The Proceedings Below.

The Gila River stream adjudication began as an

administrative proceeding in 1974 when Salt River Project filed

a petition with the Arizona Land Department to determine the

conflicting rights in the Salt River above Granite Reef Dam. In

eee

9

its present form the Gila River adjudication is a consolidated

effort to achieve “‘a comprehensive general stream adjudication

to determine ‘the nature, extent and relative priority’ of the water

rights of all who use the water of a ‘river system and source’

... With respect to waters within the Upper Salt, Verde, Upper

Gila, Lower Gila, Agua Fria, Upper Santa Cruz and San Pedro

watersheds. Gila River III at 742.

Gila River III is the third case decided by the Arizona

Supreme Court in Arizona’s general stream adjudications within

the context of six special interlocutory issues certified for review

by the Arizona Supreme Court.’

The Petitions filed by Phelps Dodge Corporation and the

Salt River Project have requested the Court to review only Issue

4 decided in Gila River III.? The Apache Tribes allege that

Petitioners have attempted to bifurcate Issues 4 and 5 for

purposes of this Court’s review, because the Gila River III court’s

holding with respect to Issue 5 “fits four square” with the Court’s

decision in Cappaert and provides the logic and rationale for

the Gila River III court’s holding with respect to Issue 4.

SUMMARY OF ARGUMENT

Gila River III seeks toimplement this Court’s decision in

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

8. See Appendix to Petitions, Appendix B, pp. B1 and B2, the

Arizona Supreme Court’s “Orders Concerning Petitions for Interlocutory

Review” filed December 11, 1990, which designated the six

Interlocutory Issues for review by the Arizona Supreme Court, including

Interlocutory Issues 4 and 5 decided in Gila River III, and the Arizona

Supreme Court’s “Special Procedural Order Providing for Interlocutory

Appeals and Certifications” dated September 26, 1989, Phelps Dodge

Petition, Appendix C.

9. Issue 4 as stated by the Arizona Supreme Court is “Do federal

reserved water nights extend to groundwater (underground water) that

is not subject to prior appropriation under Arizona Law?” Issue 4 is

clearly a federal question. Issue 5 as stated by the Arizona Supreme

Court is “Are federal reserved rights holders entitled to greater protection

from groundwater pumping than are water users who hold only state

law rights?” See Gila River Ill at 741. Issue 5 is clearly an interrelated

federal question with Issue 4.

10

(1983) (herein “San Carlos”), wherein this Court decided in

part that the McCarran Amendment provides state courts with

jurisdiction to adjudicate Indian water rights and applies to ail

states, thus providing Arizona courts with the jurisdiction to

adjudicate federal reserved water rights in Arizona’s general

stream adjudications, and decide federal reserved water right

questions, such as, the Arizona Supreme Court decided in Gila

River Ill.

The Court also held in San Carlos that state courts have a

solemn obligation to follow federal law, and that there is a

powerful federal interest in safeguarding federal reserved water

rights from state encroachment. San Carlos, 463 U.S. at 571.

See also United States v. Superior Court, 697 P.2d 658 (1985),

which upheld the jurisdiction of Arizona courts to adjudicate

federal rights in the general stream adjudication, and also upheld

the constitutionality of Arizona’s general stream adjudication

procedures. '°

The Apache Tribes respectfully submit that this Court lacks

appellate jurisdiction to grant certiorari in this matter, because

the Arizona Supreme Court’s decision in Gila River II] is not a

“final judgment” within the meaning of 28 U.S.C. § 1257(a)."'

Gila River III is interlocutory; and related federal questions must

10. For a history of Arizona’s general stream adjudications, see

San Carlos Apache Tribe v. Superior Court, 972 P.2d 179 (1999), a

special action filed in the Arizona Supreme Court by the Apache Tribes,

which held multiple legislative provisions enacted in 1995 relating to

Arizona’s general stream adjudications unconstitutional. This

unconstitutional legislation delayed this adjudication four years.

11. See Grays Harbor Logging Company v. Coats-Fordney

Logging Company, 243 U.S. 251 (1917); Radio Station WOW, Inc. v.

Johnson, 326 U.S. 120, 122, 123-124, 127 (1945); Republic Natural

Gas Co. v. Oklahoma, 334 U.S. 62 (1948); Cox Broadcasting Corp. v.

Cohn, 420 U.S. 469, 477 (1975) (herein “Cox Broadcasting”), San Diego

Gas & Electric v. City of San Diego, 450 U.S. 621 (1981); Flynt v.

Ohio, 451 U.S. 619 (1981); Minnick v. California Department of

Corrections, 452 U.S. 105 (1981); and Jefferson v. City of Tarrant, 522

U.S. 75 (1997).

EE 'éSTé'SS

11

be decided in future trial court proceedings before it is

determined that any federal reservation in Arizona has a reserved

right to groundwater (Gila River II] at 748).'2

These federal questions include, but are not limited to, a

trial court’s determination that the purposes of a particular

federal reservation entitles that reservation to groundwater; and

that such reservation requires groundwater to satisfy its

quantified federal reserved water rights. Gila River III at 750.

Until a trial court adjudicates all of these federal questions

relating to whether a particular federal reservation has a federal

reserved right to groundwater, and the Arizona Supreme Court

reviews the decision, there is no final judgment with respect to

Issue 4 which might be reviewable by this Court under 28 U.S.C.

§ 1257(a).

Assuming arguendo that Gila River II] is a final judgment,

the Court should refuse to exercise its discretion to accept

jurisdiction because the decision in Gila River II] is abstract in

nature.'? Rescue Army v. Municipal Court of Los Angeles, 331

U.S. 549 (1947). See Part VI herein.

The Arizona Supreme Court decided both Issues 4 and 5 in

the affirmative, holding that: (1) federal reserved rights extend

to groundwater to the extent necessary to accomplish the purpose

13. In Gila River III at 748, the court stated: “We decide this issue —

[Issue 4] in the abstract at this time as a necessary step in determining

the scope of interests to be encompassed by this adjudication. We do

not, however, decide that any particular federal reservation, Indian or

otherwise, has a reserved right to groundwater.”

12

of a reservation (Issue 4); and (2) holders of federal reserved

rights to groundwater have the right to protect their groundwater

from depletion by state groundwater pumpers to the extent

necessary to accomplish the purpose of a reservation (Issue 5).

It held that for the purpose of the federal reserved rights doctrine,

it makes no difference whether water “. . . runs above or below

the ground.” Gila River III at 747.

Issues 4 and 5 were decided in the abstract because there

has been no adjudication of the water rights of any federal

reservation in Arizona. Issues 4 and 5 are inextricably related.

Gila River III at 748, citing Cappaert.'*

Presently there is no case or controversy. Petitioners can

allege no present harm or constraint on their rights. Until a

trial court decides that a particular reservation has a federal

reserved right to groundwater, and the quantity and priority’

of that right, state groundwater pumpers will continue to

encroach upon and deplete'® federal reserved groundwater

14. In Cappaert, at 145, this Court held that federal reserved

surface water rights are not dependent upon state law or state procedures,

and that they are therefore protected from depletion from groundwater

pumping authorized under state law.

15. The trial court must determine the priority date of the

reservation’s right to groundwater, Salt River Project Petition, another

related federal question, since this issue was not explicitly addressed in

Gila River III., id. at 20.

16. The Arizona Supreme Court noted in Gila River III that some

Indian reservations have already been “dewatered” by “off-reservation”

pumping. Gila River Ill at 748. The 26 year delay of the adjudication

of water rights in the Arizona general stream adjudications has resulted

in the permanent depletion of the federal reserved water supplies for

some Indian reservations in Arizona. Interlocutory review by this Court

now of the Gila River Ill decision, would only constitute further

intolerable delay. See United States v. Gila Valley Irrigation District,

959 F.2d 242 (1992) where the San Carlos Apache Tribe attempted to

protect its surface rights to the Gila River from encroachment by

upstream groundwater pumpers.

13

as they have in the past, despite the decision in Gila River

ae

The Court should therefore deny the Petitions of Phelps

Dodge and Salt River Project.

REASONS FOR DENYING THE WRIT

I. THE COURT LACKS JURISDICTION BECAUSE THE

DECISION IS NOT A FINAL JUDGMENT UNDER

28 U.S.C. § 1257(a).

A. The Arizona Supreme Court’s Decision in Gila River

IIT is Not a Final Judgment Under 28 U.S.C. § 1257(a).

The Petitioners have failed to carry their burden of

affirmatively establishing that the decision in Gila River II] is a

“final judgment” within the meaning of 28 U.S.C. § 1257(a).

Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 70-71

(1948). The Court’s appellate jurisdiction to review a state-court

decision under 28 U.S.C. § 1257(a) is limited to a “final

judgment” rendered by the highest court of the state which

rendered the decision. Cox Broadcasting v. Cohn, 420 U.S. 469,

476-477 (1975) (herein “Cox”).

The “final judgment” rule has been interpreted by this Court

“to preclude reviewability . . . where anything further remains

to be determined by a State court, no matter how dissociated

from the only federal issue that has finally been adjudicated by

the highest court of the State.” Radio Station WOW, Inc. v.

Johnson, 326 U.S. 120, 124 (1945). In Radio Station WOW,

supra, this Court provided the rationale for the “final judgment”

rule:

This requirement has the support of considerations

generally applicable to good judicial administration.

It avoids the mischief of economic waste and of

delayed justice. Only in very few situations, where

17. In Gila River II] at 749-750, the Arizona Supreme Court held:

“We similarly hold that once a federal reservation establishes a reserved

right to groundwater, it may invoke federal law to protect its groundwater

from subsequent diversion to the extent such protection is necessary to

fulfill its reserved right.”

14

intermediate rulings may carry serious public

consequences, has there been a departure from this

requirement of finality for federal appellate

jurisdiction. This prerequisite to review derives

added force when the jurisdiction of this Court is

invoked to upset the decision of a State court. Here

we are in the realm of potential conflict between

the courts of two different governments.

Radio Station WOW at 124.

The Court in Cox recognized four categories of cases that

constitute exceptions to the final judgment rule where state-

court judgments are treated as final even though there are further

proceedings to take place. None of these four categories apply,

however, where there are other federal questions that must be

decided in the further proceedings to take place. Cox at 477.

This Court in Cox stated:

In most, if not all, of the cases in these categories,

these additional proceedings would not require the

decision of other federal questions that might also

require review by the Court at a later date, and

immediate rather than delayed review would be the

best way to avoid. “the mischief of economic waste

and of delayed justice,” Radio Station WOW, Inc. v.

Johnson, supra at 124, as well as precipitate

interference with state litigation.

Cox at 477.

Phelps Dodge argues that only the fourth category of

exceptions to the “final judgment” rule applies in this matter.'®

This Court has ruled that there may be an exception to the “final

judgment” rule where the federal question has been finally

decided by the state court, but: (1) there are further proceedings

pending in which the party seeking review might prevail on the

18. Salt River Project did not argue that Gila River II] falls within

any of the four categories of exceptions to the “final judgment” rule.

Respondents therefore presume that Salt River Project relies on the

arguments made by Phelps Dodge.

15

merits on non-federal grounds, thus preventing review of the

federal question by this Court; and (2) where reversal by this

Court on the federal question would be preclusive of any further

litigation in state court. The Court has held that it will only

accept review in the forth category, if failure to do so would

seriously erode federal policy. Cox at 482-483.

Here federal policy supports denial of Petitioners’ Writs.

Gila River Il is a preliminary decision to guide the trial court.

In Contested Case W1-203, proceeding below, the rights of the

Gila River Reservation will be determined. The Trial Court will

examine nearly a half million pages, executive orders, statutes,

decrees, hydrologic reports to determine, in the first instance,

whether that Reservation has a reserved water right; and if so,

whether surface water is adequate to Satisfy it; and if not, how

much groundwater would be necessary to satisfy the right; and

if so, to what extent, if any, pumping under state law would be

limited to protect the federal purposes of that Reservation.

The same process is necessary for each federal reservation.

It will be decades at the present pace before a final judgment in

a factual setting will join the federal issues in a factual context. ©

Meanwhile, Gila River III does not preclude Petitioners from

exercising their alleged state rights to pump although they are

on notice.

This fourth category of cases does not apply to Gila River

IIT because there are other critically related federal questions

that still must be decided in further trial court proceedings. The

cases cited by Phelps Dodge that Gila River III is a final

judgment, Cox, supra, and Mercantile National Bank at Dallas

v. Langdeau, 371 U.S. 555 (1963), are therefore inapposite.

Moreover, Gila River III could not fall within the fourth

Category of cases because: (1) it is impossible that Petitioners

could prevail on the merits on non-federal grounds, since they

could only prevail on the merits if all of the related federal

questions discussed herein were decided in their favor; and (2)

16

refusal by this Court to accept review now will not erode federal

policy.

B. The Decision Is Interlocutory.

The Arizona Supreme Court has stated expressly that Gila

River II] is interlocutory. As discussed above, future trial court

proceedings must decide dependent and critically related federal

questions’? Gila River III therefore does not fall within any of

the four exceptions identified in Cox.

With respect to Issue 4, the federal question as to whether

any particular federal reservation, Indian or otherwise, has a

reserved right to groundwater, includes the related and

dependent federal questions regarding the purposes of a

reservation, and the quantification of that reservation’s right to

federally reserved waters:

A reserved right to groundwater may only be found

where other waters are inadequate to accomplish the

purpose of a reservation. To determine the purpose

of a reservation and to determine the waters

necessary to accomplish that purpose are inevitably

fact-intensive inquiries that must be made on a

reservation-by-reservation basis. See United States

v. New Mexico, 438 U.S. at 700.

Gila River III at 748.

Under Gila River III, the trial court will determine the

purposes of a reservation, and quantify and prioritize each of a

reservation’s federal reserved water rights. Many reservations

were established under multiple treaties, execute orders and

19. See Grays Harbor Logging Company v. Coats-Fordney

Logging Company, 243 U.S. 251 (1917); Radio Station WOW, Inc. v.

Johnson, 326 U.S. 120, 122, 123-124, 127 (1945); Republic Natural

Gas Co. v. Oklahoma, 334 U.S. 62 (1948); Cox Broadcasting Corp. v.

Cohn, 420 U.S. 469, 477 (1975) (herein “Cox Broadcasting”), San Diego

Gas & Electric v. City of San Diego, 450 U.S. 621 (1981); Flynt v.

Ohio, 451 U.S. 619 (1981); Minnick v. California Department of

Corrections, 452 U.S. 105 (1981); and Jefferson v. City of Tarrant, 522

U.S. 75 (1997).

17

parcels. Petitioners below have urged that each addition carries

a separate federal purpose.

With respect to Issue 5, the Gila River III court decided

that no federal reserved right holder is entitled to injunctive

relief until after it establishes a reserved right to groundwater

(Issue 4), and then only to the extent necessary to preserve the

reservation’s groundwater rights (Issue 5).

In Part III we declined in the abstract to declare a

standard for determining the purpose of a

reservation. We here decline in the abstract to define

how imminent a threat to a reservation’s essential

waters must be in order to warrant injunctive relief.

The latter standard, like the former, should be

grounded in the bedrock of the facts.

Gila River III at 750.

This will require a complex evaluation of the water supply,

both surface and groundwater. The Court will determine the

water supply which was available ai the time each reservation

parcel was established. It will evaluate the present supply to

determine whether surface water is adequate. If not, it will

evaluate complex questions related to the groundwater supply

under or near the reservation. At that time, the trial court will

structure the rules necessary to protect the federal purposes for

the reservation. As in Cappaert, pumping off the reservation

will be limited under Gila River III only to the extent required

to protect the federal purpose.

A related but separate federal question included within Issue

5, not decided, but discussed in Gila River III, is whether the

Arizona Supreme Court’s definition of “subflow” (Interlocutory

Issue No. 2 now pending before the Arizona Supreme Court for

decision), will be broad enough to protect the surface water

rights of federal reservations from depletion by pumping. Gila

River III at 749.* Respondents allege that the regulation of

20. In In re the General Adjudication of All Rights To Use Water

in the Gila River Systems and Source, 857 P.2d 1236 (1993),

(Cont'd)

18

State groundwater pumping within the category of “subflow,”

as surface flow under the law of prior appropriation, will not be

adequate to protect federal reserved surface water rights. State

groundwater pumping of “subflow” to be defined by the Arizona

Supreme Court in the pending Interlocutory Issue No. 2 Issue,

will be treated as the appropriation of surface flow and will

likely be assigned a priority date and diversion rate, and

regulated accordingly under the doctrine of prior appropriation.

These critical federal questions demonstrate that Gila River

III is not a final judgment under category 4 of Cox. Moreover,

that category does not apply with respect to Issue 4, because it

is impossible that Petitioners could prevail on the merits on

non-federal grounds. The trial court would have to rule against

Petitioners on all of the related federal questions discussed

herein, if they are to prevail with respect to Issue 4.

Gila River III does not erode federal policy. It is consistent

with the federal reserved water rights doctrine, as clearly shown

by the Arizona Supreme Court’s careful application of the prior

decisions of this Court, including Winters v. United States, 207

U.S. 564 (1908); Arizona v. California, 373 U.S. 546 (1963);

Cappaert v. United States, 426 U.S. 128 (1976); and United

States v. New Mexico, 438 U.S. 696 (1978). The decision in

Gila River III therefore does not erode federal policy, and would

not be reviewable under the fourth category of exceptions to

the “final judgment” rule, even if all other prerequisites for

review were satisfied.

Interlocutory review by this Court now of Gila River III,

violates both the substance of the “final judgment” rule, and

the policies underlying such rule, because interlocutory review

(Cont'd)

(Interlocutory Issue No. 2), the Arizona Supreme Court remanded the

issue of “subflow,” i.e., whether a well pumping near a river depletes

streamflow to the extent that it must be regulated as an appropriation of

surface flow, to the trial court. The trial court on remand determined

that a well pumping from the “younger alluvium” connected to a river

is pumping “subflow.” The trial court’s decision was reviewed by the

Arizona Supreme Court, and a final decision is pending.

19

now would substantially and needlessly interfere with Arizona’s

ongoing general stream adjudications, and in particular, the Gila

River Indian Community’s federal reserved water rights in

Arizona in W1-203. Radio Station WOW, Inc. v. Johnson, 326

U.S. 120, 124 (1945).

Il. THE COURT SHOULD NOT GRANT CERTIORARI

BECAUSE THE GILA RIVER III DECISION IS

ABSTRACT IN NATURE.

Gila River IIT is abstract in nature, as a matter of substantive

law. This Court should not accept jurisdiction, even if the Court

determined that the decision was a final judgment. See Rescue

Army v. Municipal Court of Los Angeles, 331 U.S. 549 (1947).

The Gila River III court explained that it was not imposing

a standard upon the trial court for determining the purpose of

any reservation, because such a standard is not well-suited to

“abstract declaration and should instead emerge from testing in

the solid. context of the facts.” Gila River III at 748-750. Thus,

the trial court in future proceedings involving the issue as to

whether a particular federal reservation has a reserved right to

groundwater, will be required to decide other related federal

questions, including the standard for determining the purpose

of any particular reservation, and if “... other waters are

inadequate to accomplish the purpose of a reservation.” Gila

River III at 748.

The Gila River III court also followed this Court’s holding

in United States v. New Mexico, 438 U.S. 696 (1978) (herein

“New Mexico”), and held that a reserved right to groundwater

may only be found where “other waters” are inadequate to

accomplish the purpose of a reservation. Assuming arguendo

that the Gila River III decision is a final judgment, the Court

should not grant review because the decision comes to this Court

in a highly abstract form as acknowledged by the Arizona

Supreme Court in its decision. Rescue Army v. Municipal Court

of Los Angeles, 331 U.S. 549 (1947); and Minnick v. California

20

Department of Corrections, 452 U.S. 105 (1981). It has long

been this Court’s practice not to decide abstract issues of law.

Petitioners present no case or controversy. The Petitioners

are essentially requesting that the Court render an advisory

opinion on Issue 4, one of several related federal questions in

Gila River III. This Court should decline discretionary certiorari

review in this matter, where further Arizona state court

proceedings will tender the related federal questions to this Court

in clean-cut and concrete form, grounded in the bedrock of facts,

after they have actually been decided and applied in the

adjudication of a particular federal reservation’s federally

reserved water rights. Gila River III at 748-750; Rescue Army

v. Municipal Court of Los Angeles, 331 U.S. 549 (1947); and

Minnick v. California Department of Corrections, 452 U.S. 105

(1981).

Ill. THE ARIZONA SUPREME COURT DECISION

CONFORMS WITH THE PREVIOUS DECISIONS OF

THIS COURT REGARDING FEDERAL RESERVED

WATER RIGHTS.

A. The Gila River III Court’s Holdings With Respect to

Issue 4 and 5.

With respect to Issue 4, the Gila River III court held:

Federal reserved rights extend to groundwater to the

extent groundwater is necessary to accomplish the

purpose of a reservation.

Gila River III at 751.

With respect to Issue 5, the Gila River III court held:

Holders of federal reserved rights enjoy greater

protection from groundwater pumping than do

holders of state law to the extent that greater

protection may be necessary to maintain sufficient

water to accomplish the purpose of a reservation.

Gila River Ill at 751.

The Gila River III court specifically rejected all of the

a"guments that Petitioners make here that state law regarding

21

groundwater pumping is adequate to protect federal reserved

water rights.

First, the Arizona Supreme Court stated that this Court has

defined the federal reserved water rights doctrine as an exception

to Congress’ deference to state water law. Gila River III at 747.

See Cappaert, 426 U.S. at 144 (holding that the Desert Land

Act does not apply to water rights on federally reserved land.

See also United States v. Rio Grande Dam & Irrig. Co., 174

U.S. 690 (1899). Petitioners therefore egregiously misstate the

law when they argue in their Petitions that federal reserved rights

are deferential to state water law.

Second, the Arizona Supreme Court in Gila River III also

rejected Petitioners’ arguments under Wilson v. Omaha Indian

Tribe, 442 U.S. 653 (1979), that state law is adequate to protect

federal reserved water rights to groundwater, the court holding

that if Arizona groundwater law applied to federal reservations,

all overlying landowners would have an equal right to pump as

much water as they can put to reasonable use, and all aquifers

underlying federal reservations could be pumped dry by “off-

reservation” pumping.

The court acknowledged in its decision that many aquifers

underlying federal and Indian reservations have already been

depleted by state groundwater pumpers.”!

The Gila River III court correctly rejected Petitioners’

argument that federal law should adopt the state rule of decision

for the reason that it overlooks the fact that federal reserved

water rights are by nature a federal preserve intended to continue

in perpetuity, and they must fulfill the “future requirements” of

21. The Gila River III court at 748 noted that “Within the Lower

Gila River watershed [Gila River Indian Reservation], groundwater

tables have been so lowered as to sever the connection between ground

and surface water.” The court also noted at p. 748 that “Some Indian

reservations have been entirely “dewatered” by off-reservation

pumping.” citing Gila River Pima-Maricopa Indian Community v.

United States, 9 Cl. Ct. 660, 665-66 (1986).

22

federal and Indian reservations, citing Winters, supra, and

Arizona v. California, supra:

A theoretical equal right to pump groundwater in

contrast to a reserved right, would not protect a

federal reservation from a total future depletion of

its underlying aquifer by off-reservation pumping.

Gila River III at 748.

The application of state groundwater law to federal

reservations, even in a “nondiscriminatory” manner as argued

by Petitioners, would neverthel<ss frustrate or defeat the federal

purposes and objectives of federal reservations, since the

groundwater underlying federal reservations would be pumped

dry under the state rule of decision. United States v. Little Lake

Misere Land Co., 412 U.S. 580 (1973).

The federal reserved water rights doctrine must therefore

be applied to groundwater for all federal reservations as a matter

of federal law in order tc protect and safeguard federal interests.

Cappaert, supra.”

B. The Gila River III Court’s Decision Follows This Court’s

Previous Decisions Regarding Federal Reserved Water

Rights and Therefore Does Not Erode Federal Policy.

The Gila River III court cited the holdings of this Court in

both Winters (federal reserved rights extend to surface water)

and Cappaert (federal reserved surface water protected from

depletion by state groundwater pumping),” as guideposts

22. Issues 4 and 5 are inextricably related because Issue 5 protects

the groundwater underlying federal reservations from being depleted.

23. In Cappaert, this Court held: “Thus, since the implied-

reservation-of-water is based on the necessity of water for the purpose

of the federal reservation, we hold that the United States can protect its

water from subsequent diversion, whether the diversion if of surface or

groundwater.” Cappaert at 143. The Court held that reserved suriace

water at Devil’s Hole which was part of the Death Valley National

Monument was protected from depletion by state groundwater pumping

to the extent necessary to satisfy one of the purposes of the reservation

which was to preserve a unique species of fish.

23

providing the rational for their holding that federal reserved

water rights may also extend to groundwater:

While Cappaert bears most directly upon our

discussion of issue 5 in Part IV of this opinion, we

find it helpful to our resolution of the present issue

[Issue 4] as well. That federal reserved right law

declines to differentiate surface and groundwater —

that it recognizes them as integral parts of a

hydrologic cycle — when addressing the diversion

of protected waters suggests that federal reserved

rights law would similarly decline to differentiate

surface and groundwater when identifying the water

to be protected.

Gila River III at 747.

Thus, the Arizona Supreme Court applied and followed this

Court’s previous decisions regarding federal reserved water

rights in Winters, Cappaert and New Mexico. Gila River III is

therefore consistent with the federal substantive law and policies

protecting federal reserved water rights as established by this

Court.

C. The Decision Is Consistent With The Decisions of Other

Federal Courts.

The Decision is consistent with the decisions of all federal

courts which have ruled on the federal reserved rights to

groundwater. While this Court has not yet ruled that federal

reserved water rights extend to groundwater, some federal courts

have.

The Federal District Court in San Carlos expressly ruled

on the Apache Tribes’ concern that Arizona would not follow

federal law concerning the reserved right to groundwater. Matter

of Determination of Conflicting Rights To The Use of Water

From The Salt River Above Granite Reef Dam, 484 F. Supp.

778 (1980), rev’d on other grounds, 668 F.2d 1093 (1982), rev'd,

463 U.S. 545 (1983), vacated 721 F.2d 1187 (1983) (action

24

stayed pending conclusion of state court proceeding). The Court

cited Cappaert as the authority for its ruling:

The Supreme Court in Cappaert further stated that

the “United States can protect its water from

subsequent diversion, whether the diversion is of

surface or groundwater.” 426 U.S. at 143, 96 S.Ct.

At 2071.

Thus, the State proceedings will determine federal

reserved water rights (including federal reserved

rights to percolating groundwater) and rights to

water appropriabie under State law.

Those rights which are state created will be

determined by state law and Federal law will be

applied to determine those rights which derive from

Federal law.

484 F. Supp. at 784.

Thus, the U.S. District Court of Arizona held in this case

that because Arizona general stream adjudications would

adjudicate the federal reserved water rights of Indian tribes to

both surface and groundwater, the state proceedings qualified

as a McCarran Amendment proceeding.

In Gila River Pima-Maricopa Indian Community v. United

States, 9 Cl. Ct. 660, 699-700 (1986), the U.S. Court of Claims

expressly held that groundwater under the Gila River Indian

Reservation was impliedly reserved for the Gila River Indian

Community under the federal reserved rights doctrine, citing

Winters, Arizona v. California, and Cappaert, supra, as

authority.

In Tweedy v. Texas Company, 286 F. Supp. 383, 385 (Mont.

1968), the U.S. District Court of Montana acknowledged that

while the Winters case dealt only with surface water, the same

logic which led this Court in Winters to hold that surface waters

had been reserved, would also apply to groundwater:

The land was arid — water would make it more

useful, and whether the water were found on the

25

surface of the land or under it should make no

difference.

In Park Center Water District v. United States, 781 P.2d

90, 95 (Colo. 1989), cert. den., 494 U.S. 1079 (1990), the

Supreme Court of Colorado assumed without deciding, that

federal reserved water rights apply to groundwater in the same

way as it does to surface water, citing Cappaert.

In State of Nevada v. United States, 165 F. Supp. 600

(D. Nev. 1958) the federal court ruled that the federal

government had the right under the holding in Federal Power

Comm'n. v. Oregon, 349 U.S. 435 (1955), to make full use of

all underground or percolating waters developed in its own wells

on federal reserved land, independent of state law or procedures,

and was therefore not required to comply with state law or

procedures to use its underground waters.

The Ninth Circuit in United States v. Cappaert, 508 F.2d

313, 317 (9th Cir. 1974) also held that Federal reserved rights

extend to both surface water and groundwater:

Two cases in the Ninth Circuit approved the

application of the doctrine of implied reservation

of groundwater when water was needed to

accomplish the purpose of the reservation. Neveda

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. 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.

(Emphasis added).

Petitioners’ argument that this Court should treat Gila River

III as a final judgment under the fourth category of exceptions

to the “final judgment” rule under Cox Broadcasting v. Cohn,

420 U.S. 469, 476-477 (1975) (herein “Cox’”), because it is

inconsistent with and will erode federal policy, is therefore

erroneous.

26

D. The Gila River II Court Correctly Decided Issue 4.

The Court has long recognized the reality that groundwater

and stream flow are connected. It is not an impermissible leap

of faith to find that “groundwater and groundwater” are

connected. In Arizona v. California, all withdrawals of water in

the Upper Basin, from surface flow or from wells, is counted

against the Upper Basin share of the Colorado River. The Court

also ruled that all “underground sources” were to be counted

against New Mexico’s share of the Gila River under the equitable

apportionment between New Mexico and Arizona. Arizona v.

California, 376 U.S. 340, 347, 348 (1964). New Mexico water

users were enjoined by the Court from withdrawing water from

underground sources in the Gila Basin in New Mexico, with

certain exceptions. Jd. at 347, 348, 349. It further ruled that

under those limited exceptions, pumping could be enjoined

when it “is adjudged by a court of competent jurisdiction to be

an infringement or impairment of rights confirmed by the Gila

Decree.” Id. at 350. See also Cappaert at 142; Kansas v.

Colorado, 514 U.S. 673 (1995) (Post Compact pumping in

Colorado has caused material depletion of usable state line flows

of the Arkansas River); Nebraska v. Wyoming and Colorado,

515 U.S. 1 (1995) (Nebraska would be permitted to allege that

increased groundwater pumping within Wyoming threatened

substantial depletion of the North Platte River’s natural flow.)

Issues 4 and 5 are inextricably intertwined because

Cappaert was followed by the Gila River III court in its holding

that federal reserved right to groundwater may be protected from

depletion by state groundwater pumping. The need to protect

federal groundwater from depletion, provides the logic and

rationale for the Gila River III court’s holding, that federal

reserved water rights extend to groundwater to the extent

necessary to accomplish the purpose of a reservation.”

24. The Arizona Supreme Court found that even if Arizona state

law were applied in a nondiscriminatory manner among state and federal

interests, groundwater underlying federal reservations could be totally

depleted, as has already happened to some federal and Indian

(Cont’d)

27

IV. CONFLICTS WITH OTHER CASES DO NOT EXIST

TO PROVIDE REASON TO GRANT CERTIORARI.

There is no reason to grant certiorari under Supreme Court

Rule 10.

Petitioners argue that there is a conflict between two state

courts of last resort regarding the same important federal

question.” This Court did accept jurisdiction in Wyoming in

Wyoming v. United States, 488 U.S. 1040 (1989) (herein

“Wyoming’’), to review the federal question of the extent of

Indian federal reserved water rights under the “practicably

irrigable acreage” standard adopted by this Court in Arizona v.

California, 373 U.S. 546 (1963). However, the Wyoming state

court decision, Jn re: the General Adjudication of All Rights to

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

1988), was clearly a final judgment within the meaning of

28 U.S.C. § 1257(a). It was not an interlocutory judgment as

argued by Phelps Dodge in its Petition at p. 13 because the trial

court had adjudicated all of the federal questions and the reserved.

water rights of the Wind River Indian Reservation.”

(Cont’d)

reservations in Arizona. Gila River III at 748. It is the federal concern

and objective to protect against the depletion of the federal interest,

here groundwater underlying federal reservations (Issue 5), that

predetermines the federal decision that the federal reserved rights

doctrine applies to groundwater (Issue 4).

25. The Petitioners cite the dissenting opinion in Confederated

Salish and Kootenai Tribes v. Clinch, 992 P.2d 244 (Mont. 1999) (herein

“Clinch” ), for the proposition that there is a conflict between the Arizona

and Wyoming state courts of last resort regarding whether a federal

reserved right to groundwater exists.

26. This Court has held that the designation given the judgment

by state practice is not controlling as to finality. Richfield Oil Corp. v.

State Board, 329 U.S. 69 (1946). However, Gila River II] is interlocutory,

because further trial court proceedings are necessary to apply the court’s

holding regarding Issue 4, within the context of the adjudication of a

particular federal reservation where other related federal questions must

also be decided.

28

In Clinch, the Montana Supreme Court upheld its prior

decision in Jn the Matter of the Application for Beneficial Water

Use Permit Nos. 66459-76L, Ciotti, et al., 923 P.2d 1073 (Mont.

1996), that the Montana Department of Natural Resources and

Conservation has no authority to issue any water permits on

the Flathead Indian Reservation until the Tribes’ reserved water

rights are quantified. The Montana cases do not address the

issue Of whether the Tribes have a federal reserved right to

groundwater. The Montana cases held that there is a difference

between state appropriative rights and federal reserved rights

because federal reserved rights are governed by federal law,

and are established by references to the purposes of a reservation.

In Gila River III, unlike Big Horn, there has been no

adjudication of any federal reservation’s reserved water right,

Indian or otherwise. The argument by Phelps Dodge that since

the decision in the Wyoming state court decision was

interlocutory, but treated as a final judgment that this Court

should also treat Gila River III as a final judgment, is flawed.

In the present context of the Arizona adjudications, it

appears that the first Indian water rights to be adjudicated will

be those of the Gila River Reservation in Contested Case

W1-203. The Special Master in the Gila River adjudication has

set the briefing schedule to begin adjudicating the federal

reserved water rights of the Gila River Indian Community. See

Contested Case No W 1-203, “In re the Water Rights of the Gila

River Indian Community.”

As with the Wind River Indian Reservation in the Wyoming,

Issue 4, and all other dependent and related federal questions

relating to whether the Gila River Indian Reservation has a

reserved water right to groundwater, will be adjudicated in

W 1-203. If the Arizona Supreme Court then reviews the trial

court judgment, and issues a decision, this Court might then

have appellate jurisdiction to review Issue 4 as a final judgment

under 28 U.S.C. § 1257(a).

29

CONCLUSION

These Petitioners initiated the Arizona adjudications. They

wrote the statues and represented to the Court, the Arizona

Supreme Court and these Respondents that the Arizona

adjudication would be comprehensive. In San Carlos the same

Petitioners told the Court:

There is little dispute over the comprehensiveness

of Arizona’s statutory procedure for the general

adjudication of conflicting claims to water. (fn

omitted) Under that procedure, each owner of land

in the watershed under adjudication is identified and

personally served with process, and each water right

is determined in a decree binding on all water

claimants within the watershed — which, of course,

is precisely the procedure required by the McCarran.

Petitioners’ Reply Brief in No. 81-2147, p. 10. They should not

now be heard to say that they did not mean groundwater

necessary to the purposes of a federal reservation, or that it is

too burdensome on state claimants to participate. It is

burdensome on the Tribes . The Apache Tribes urged the Court

to protect them from the State proceedings in San Carlos.

The Supreme Court of Arizona addressed these concerns

of Petitions in Gila River III. It correctly determined that “for

federal law, the question is one of hydrology, not

compartmentalization.” Jd. at 751. It found that “the overarching

purpose of the general stream adjudication statute is to provide

the finality and certainty that can only be achieved through

determination of all claims to water within the basin.” Jd. at

751.

Petitioners should not now be heard to say that although

they knew that they could not defeat the federal purposes of an

Indian reservation by surface diversions under Winters, they

nevertheless could do it with their pumps.

The Arizona Supreme Court reminded these Petitioners that

“there long has loomed the need — sometimes noted, sometimes

wished away — for those same interests also to accommodate

30

themselves to the water claims of the vast federal land holdings

that surround them.” See Gila River I, 697 P.2d at 663. Gila

River III at 750.

These Petitioners must abide by the proceedings they

initiated. Although burdensome for all, at this point “the best

way out is always through.” Gila River III at 750.

The Court should deny the certiorari petitions because the

Gila River III decision is not a “final judgment” within the

meaning of 28 U.S.C. § 1257(a); and because the decision is

abstract in nature not warranting review at this time.

Respectfully submitted,

Jor P. SpaRKs*

KEvIN T. TEHAN

JOHN H. RYLEY

SPARKS, TEHAN & RYLEY, P.C.

Attorneys for Respondents

The San Carlos Apache Tribe,

The Tonto Apache Tribe and

The Yavapai-Apache Nation

7503 First Street

Scottsdale, Arizona 85251

(480) 949-1339

* Counsel of Record