Opposition Brief — Phelps Dodge Corp. v. United States

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No. 00-1464 (RECS OP INS FR

In the Supreme Court of the Anited States

PHELPS DODGE CORPORATION, ET AL., PETITIONERS

VU.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ARIZONA

BRIEF FOR THE UNITED STATES IN OPPOSITION

BARBARA D. UNDERWOOD

Acting Solicitor General

Counsel of Record

JOHN C. CRUDEN

Acting Assistant Attorney

General

WILLIAM B. LAZARUS

ANDREW C. MERGEN

TODD S. KIM

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether an interlocutory decision of the Arizona

Supreme Court establishing a rule of state water law to

be applied in an ongoing general stream adjudication

effected a judicial taking of petitioners’ property

without just compensation in violation of the Fifth

Amendment.

(I)

TABLE OF CONTENTS

Page

Opinions below 1

Jurisdiction , 1

Statement .........

Argument ......cecese00 8

Conclusion ........ 16

TABLE OF AUTHORITIES

Cases:

Aikens v. Arizona Dep't of Water Res., 743 P.2d 946

(Asie. CO. Asgir, 16GB) cccercccceerssssssesssesosesansstencesserecesssesssssessnese 12

Arizona v. California, 373 U.S. 546 (1963) 3,4

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

(1983) 2

Bristor v. Cheatham, 255 P.3d 173 (Ariz. 1953) .........0++++ 4

Cappaert v. United States, 426 U.S. 128 (1976) .......000+ 3

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

1982), aff’d, 716 F.2d 687 (9th Cir. 1983), cert. denied,

GEE OE. GOR CIGD cacctciteniccemnesensnssersscsencees 12

Corporation of the Presiding Bishop of the Church

of Jesus Christ of the Latter-Day Saints v. Hodel,

637 F. Supp. 1398 (D.D.C. 1986), aff’d, 830

FD 874 CD.C. Clr. 1987) ...cerccsccscccocsscscescccscccsesccscesscsscsssosseee 13, 14

Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1985) .........000+ 9, 10

Jefferson v. City of Tarrant, 522 U.S. 75 (1997) .......... 8, 9, 10

Lucas v. South Carolina Coastal Council, 505 U.S.

BID dcsecsinntsnenistssesicysnciessuctentnprpsrecritneesutaneanbentansneenestomness 11

Maricopa County Mun. Water Conservation Dist. No. 1

v. Southwest Cotton Co., 4 P.2d 369 (Ariz. 1931) ...... 5, 14, 15

Market St. Ry. v. Railroad Comm'n, 324 U.S. 548

TIT sauslecisiatipsestnetsiiteadithitanshihepenavendbatiidanisstteansaptnimaadnennacimineceee 9

Rights to the Use of the Gila River, In re, 830 P.2d

IC TI eiecnsccncsensessstnermestnentsnecesnensesitesennncinntinane 2,8, 11,12

(IIT)

IV

Cases—Continued: Page

The General Adjudication of All Rights to Use Water

in the Gila River System and Source, In re, 989

P.2d 739 (Ariz. 1999), cert. denied, 530 U.S. 1250

(2000) ’ 2-3

Town of Chino Valley v. City of Prescott, 638 P.2d

1324 (Ariz. 1981), appeal dismissed, 457 U.S. 1101

COD ineccsennnstisniinsnhsiastioninintiiinarcitnsicnite he 11,12

United States v. Gila Valley Irrigation Dist., 961

F.2d 1432 (9th Cir. 1992) .... soinasanasnetens 3

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

(1978) ” 3

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

(Ariz. 1985) 2

Williams v. Adkinson, 792 F. Supp. 755 (M.D. Ala.

TED scccicnnccsseisiinsiiesisinaiiannchiiesinanieteitasadhaiiaaanialaiadianinsabasn 14

Winters v. United States, 207 U.S. 564 (1908) ..............0. 3

Constitution and statutes:

U.S. Const. Amend. V (Just Compensation Clause) ...... 2,14, 16

McCarran Amendment, 43 U.S.C. 666 3

28 U.S.C. 1257(a) = 8,9

Ariz. Rev. Stat. Ann. (1994 West & Supp. 2000):

§ 45-141.A 3

§§ 45-251 to 45-264 2

§ 45-451.B 12

In the Supreme Court of the Gnited States

No. 00-1464

PHELPS DODGE CORPORATION, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ARIZONA

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the Arizona Supreme Court (Pet. App.

A1-A34) is reported at 9 P.3d 1069. The opinion of the

Superior Court of the State of Arizona (Pet. App. B1-

B71) is unreported. An earlier opinion of the Arizona

Supreme Court (Pet. App. C1-C30) is reported at 857

P.2d 1236. An earlier opinion of the Superior Court of

the State of Arizona (Pet. App. F1-F30) is unreported.

JURISDICTION

The judgment of the Arizona Supreme Court was

entered on September 22, 2000. A motion for recon-

sideration was denied on December 19, 2000 (Pet. App.

I1-I2). The petition for a writ of certiorari was filed on

(1)

2

March 19, 2001. The jurisdiction of this Court is sought

to be invoked under 28 U.S.C. 1257(a). As discussed

below, however (see pp. 8-10, infra), this Court does not

have jurisdiction because the Arizona Supreme Court’s

interlocutory ruling is not a “[f]inal judgment[] or

decree[]” within the meaning of 28 U.S.C. 1257(a).

STATEMENT

In 1990, the Arizona Supreme Court certified six

issues for interlocutory review in order to aid the state

trial court in resolving the claims of competing parties

in the ongoing general stream adjudication of the Gila

River System. Pet. App. D1-D12. In addressing the

second of those six issues, the Arizona Supreme Court

has now affirmed a trial court order defining “subflow,”

a term of art in Arizona water law. /d. at Al-A34.

Petitioners argue that the state court’s decision

warrants review by this Court because it effected a

judicial taking of property without just compensation in

violation of the Fifth Amendment.

1. This case arises from a general stream adjudi-

cation brought under Arizona law to determine all

rights to use waters of the Gila River System in

Arizona. See generally Ariz. Rev. Stat. Ann. §§ 45-251

to 45-264 (West 1994 & Supp. 2000) (establishing pro-

cedures for such river system adjudications). The

history of the adjudication is described in Arizona v.

San Carlos Apache Tribe, 463 U.S. 545, 557-559 (1983);

In re Rights to the Use of the Gila River, 830 P.2d 442,

444-445 (Ariz. 1992); and United States v. Superior

Court, 697 P.2d 658, 663-664 (Ariz. 1985) (en banc).’

! This Court recently denied a petition for certiorari seeking

review of a different interlocutory opinion of the Arizona Supreme

Court in the same adjudication. See Jn re the General Adjudica-

tion of All Rights to Use Water in the Gila River System and

seerrereeseeieisiiiiiniiiiiiaiiaaieiiiaia

3

The United States is participating in the adjudication

pursuant to the McCarran Amendment, 43 U.S.C. 666.

Under the doctrine of federally reserved water rights,

see, e.g., United States v. New Mexico, 438 U.S. 696, 698

(1978); Cappaert v. United States, 426 U.S. 128, 138

(1976); Arizona v. California, 373 U.S. 546, 599-600

(1963); Winters v. United States, 207 U.S. 564, 575-578

(1908), the United States claims rights to the use of

certain waters in the Gila River System on its own

behalf and as trustee for several Indian reservations.

The United States also claims water rights arising

under Arizona law, as well as rights confirmed by the

1935 Globe Equity Decree entered by the United

States District Court for the District of Arizona. See

United States v. Gila Valley Irrigation Dist., 961 F.2d

1432 (9th Cir. 1992) (action to enforce the 1935 decree).

2. Arizona law generally classifies water into three

categories: (1) surface water, such as lakes, ponds,

rivers, and streams, including underground streams; (2)

“subflow” groundwater that is closely connected to

surface water in hydrology and is considered incidental

thereto; and (3) “percolating” groundwater that is not

so closely connected to surface water. See Pet. App.

A6-A8, C8-C14. Rights to water within the first two

categories are governed by the state-law doctrine of

“prior appropriation,” while rights to percolating

groundwater are subject to the state-law doctrine of

“reasonable use.” See ibid.; Ariz. Rev. Stat. Ann. § 45-

141.A (West 1994 & Supp. 2000). Under the doctrine of

prior appropriation, “the one who first appropriates

water and puts it to beneficial use thereby acquires a

vested right to continue to divert and use that quantity

Source, 989 P.2d 739 (Ariz. 1999) (en banc), cert. denied, 530 U.S.

1250 (2000) (Nos. 99-1388 & 99-1389). a

4

of water against all claimants junior to him in point of

time.” Arizona v. California, 373 U.S. at 555. Under

the doctrine of reasonable use, a landowner may

capture as much of the groundwater underlying his

property as can be used on the overlying land,

regardless of the effect on the quantity of water

available to others. See Bristor v. Cheatham, 255 P.2d

173, 179-180 (Ariz. 1953).

3. In 1988, the Arizona superior court entered an

order that addressed several aspects of the relationship

between groundwater and surface water. See Pet.

App. F1-F32; see also id. at G1-G4 (setting forth the

questions that the superior court proposed to address).

The court considered the circumstances under which

wells used to draw groundwater from the portion of a

stream basin known as the “younger alluvium” would

be presumed to withdraw subflow. The court stated

that “[aJs to wells located in or close to that younger

alluvium,” that presumption would apply whenever

the volume of stream depletion would reach 50% or

more of the total volume pumped during one

growing season for agricultural wells or during a

typical cycle of pumpage for industrial, municipal,

mining, or other uses, assuming in all instances and

for all types of use that the period of withdrawal is

equivalent to 90 days of continuous pumping for

purposes of technical calculation.

Hd. at F14.

2 The “younger alluvium” is the portion of a stream basin

nearest the stream itself, made of deposits dating from approxi-

mately the last 10,000 years. See Pet. App. A5 n.2, B11-B12, B19,

B21-B22.

5

4. In response to petitions for review filed by

numerous parties, the Arizona Supreme Court in 1990

certified six issues for interlocutory appeal. See Pet.

App. D1-D17; see also id. at E1-E10 (establishing pro-

cedures for interlocutory appeals in this adjudication).

The second of those certified questions was whether the

trial court’s test for subflow—termed the “50%/90 day”

test—was erroneous. See id. at D2.

In a decision commonly known as Gila River II, the

Arizona Supreme Court vacated the portion of the

superior court’s order establishing the “50%/90 day”

test for subflow. See Pet. App. C1-C30. The Arizona

Supreme Court perceive[d] “[its] role as interpreting”

its 1931 decision in Maricopa County Municipal Water

Conservation District No. 1 v. Southwest Cotton Co., 4

P.2d 369 (Ariz. 1931), which established that subflow —

constitutes “part of the surface stream itself” and thus

is appropriable under the relevant statutes in the same

way as surface water. Pet. App. C13, C16 (quoting

Southwest Cotton, 4 P.2d at 380). The court recognized

that Southwest Cotton had established the following

test:

[T]he test is always the same: Does drawing off the

subsurface water tend to diminish appreciably and

directly the flow of the surface stream? If it does, it

is subflow, and subject to the same rules of appro-

priation as the surface stream itself; if it does not,

then, although it may originally come from the

waters of such stream, it is not, strictly speaking, a

part thereof, but is subject to the rules applying to

percolating waters.

Id. at C13-C14 (quoting Southwest Cotton, 4 P.2d at

380-381); see also id. at C17, C26 (recognizing that

6

Southwest Cotton established a “direct and appreciable

diminution” test for subflow).

The Arizona Supreme Court held that the superior

court’s “50%/90 day” test did not comport with the

definition of subflow set forth in Southwest Cotton. Pet.

App. C16-C24. The court explained:

Whether a well is pumping subflow does not turn on

whether it depletes a stream by some particular

amount in a given period of time. * * * [I]t turns

on whether the well is pumping water that is more

closely associated with the stream than with the

surrounding alluvium. For example, comparison of

such characteristics as elevation, gradient, and per-

haps chemical makeup can be made. Flow direction

can be an indicator.

Id. at C24. The court remanded the case to allow the

superior court to determine more appropriate “criteria

for separating appropriable subflow from percolating

groundwater.” Jd. at C30.

5. On remand, the superior court conducted sub-

stantial further proceedings, including numerous evi-

dentiary hearings in which hundreds of exhibits were

introduced, as well as a tour cf multiple sites in the San

Pedro River Basin (a portion of the larger Gila River

Basin). ‘See Pet. App. B2-B8. The court then issued an

order applying the criteria set forth in Gila River IT:

After consideration of flow direction, water level

elevation, the gradation of water levels over a

stream reach, the chemical composition if available,

and lack of hydraulic pressure from tributary

aquifer and basin fill recharge which is perpendi-

cular to stream and “subflow” direction, the Court

finds the most accurate of all the markers is the

edge of the saturated floodplain Holocene alluvium.

7

Id. at B54. Thus, the trial court adopted the “saturated

floodplain Holocene alluvium” as the subflow zone. Id.

at B54-B58. Any well pumping part of its water from

that zone would be included within the adjudication of

rights to Gila River System water. See id. at B58-B63.

6. On further interlocutory review, the Arizona

Supreme Court affirmed the superior court’s order. See

Pet. App. Al-A34. After examining Southwest Cotton

and Gila River II, see id. at A8-A12, the court found

that the superior court had properly “based its ruling

on evaluation of the pertinent factors * * * for de-

lineating the subflow zone,” id. at Al4. The Arizona

Supreme Court concluded that

[uJnlike the 50%/90 day test we rejected in Gila

River IT, the trial court’s order after remand is not

arbitrary. Nor does it include tributary aquifers in

its definition of subflow. Although the saturated

floodplain Holocene alluvium may appear to be

inconsistent with the “narrow concept” of subflow

described in Gila River II, and suggested in South-

west Cotton, we reject the argument that the trial

court’s findings and conclusions, as a matter of law,

so violate the fundamental principles of those cases

that they cannot stand. Nor does affirmance of the

trial court’s order require us to overrule Gila River

II or Southwest Cotton, and we do not do so.

Id. at A25-A26 (citations omitted). The court also

stated that “(t]he criteria that the trial court articulated

were elaborations of, but consistent with, the more

general criteria set forth in Gila River II.” Id. at A26.

Finally, the Arizona Supreme Court rejected the

contention that the superior court’s order “amount[ed]

to an unconstitutional taking of [groundwater users’]

private property, in violation of the Fifth Amendment.”

8

Pet. App. A33. The court explained that “{iJn remand-

ing this matter in Gila River II for the trial court to

establish an evidentiary and principled basis for

differentiating appropriable subflow from percolating

groundwater, we implicitly rejected the groundwater

users’ identical argument in that case.” Jbid. The court

also observed that under Arizona law, “a well owner

does not own underground water,” and “landowners

have ‘no legally recognized property right in potential,

future groundwater use.’” Jbid. (quoting In re Rights

to the Use of the Gila River, 830 P.2d at 451).

ARGUMENT

The Arizona Supreme Court’s interlocutory decision

is not a “[flinal judgment[] or decree[]” within the

meaning of 28 U.S.C. 1257(a), the jurisdictional pro-

vision that governs this Court’s review of state court

decisions. In any event, the Arizona Supreme Court’s

ruling did not effect a taking of private property, and

the decision raises no federal question of recurring

significance. The petition for a writ of certiorari should

therefore be denied.

1. This Court has jurisdiction to review “(f]inal judg-

ments or decrees rendered by the highest court of a

State * * * where any title, right, privilege, or im-

munity is specially set up or claimed under the

Constitution or the treaties or statutes of * * * the

United States.” 28 U.S.C. 1257(a). Section 1257(a)

“establishes a firm final judgment rule.” Jefferson v.

City of Tarrant, 522 U.S. 75, 81 (1997). “To be review-

able by this Court, a state-court judgment must be final

‘in two senses: it must be subject to no further review

or correction in any other state tribunal; it must also be

final as an effective determination of the litigation and

not of merely interlocutory or intermediate steps

ee

9

therein.’” Ibid. (quoting Market Street Ry. v. Railroad

Comm'n, 324 U.S. 548, 551 (1945)). Because the

Arizona Supreme Court’s interlocutory ruling is not a

“(flinal judgment([] or decree[]” within the meaning of

Section 1257(a), this Court lacks jurisdiction to review

the state court’s decision.

a. Like the order at issue in Jefferson, the Arizona

Supreme Court’s decision in this case is an inter-

locutory ruling that arose from the state court’s de-

cision to certify certain legal questions for preliminary

determination. Compare Jefferson, 522 U.S. at 81, with

Pet. App. A4-A5, D1-D2. The Arizona Supreme Court’s

decision does not terminate the litigation or resolve any

of the claims raised therein. Rather, it provides pro-

spective guidance to the superior court on matters of

Arizona law. The Arizona Supreme Court’s decision is

an “intermediate step[]” and not the “final word” on

water rights claims in the Gila River Basin. Jefferson,

522 US. at 81.

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

(1975), this Court identified four categories of state

decisions that are deemed effectively final, for purposes

of Section 1257(a), notwithstanding the prospect of

further proceedings in the lower state courts. The

Arizona Supreme Court’s decision does not fall within

any of those categories.

The only conceivably applicable Cox Broadcasting

category is the second, which encompasses “cases

* * * in which the federal issue, finally decided by the

highest court in the State, will survive and require

decision regardless of the outcome of future state-court

proceedings.” 420 U.S. at 480. That exception

3 The other three categories of state court decisions that can be

final under Section 1257(a) notwithstanding the pendency of

addresses situations when “the federal issue would not

be mooted or otherwise affected by the proceedings yet

to be had because those proceedings have little sub-

stance, their outcome is certain, or they are wholly

unrelated to the federal question.” Jd. at 478. In the

instant case, however, the outcome of the proceedings

on remand is scarcely foreordained. As in Jefferson,

petitioners’ takings claim may become moot as the

litigation progresses if the superior court determines

their water rights in a manner that petitioners find

satisfactory. See 522 U.S. at 77, 82.

proceedings on remand are (1) “cases in which there are further

proceedings—even entire trials—yet to occur in the state courts

but where for one reason or another the federal issue is conclusive

or the outcome of further proceedings preordained,” 420 U.S. at

479; (2) “situations where the federal claim has been finally

decided, with further proceedings on the merits in the state courts

to come, but in which later review of the federal issue cannot be

had, whatever the ultimate outcome of the case,” id. at 481; and (3)

“situations where the federal issue has been finally decided in the

state courts with further proceedings pending in which the party

seeking review here might prevail on the merits on nonfederal

grounds, thus rendering unnecessary review of the federal issue by

this Court, and where reversal of the state court on the federal

issue would be preclusive of any further litigation on the relevant

cause of action rather than merely controlling the nature and

character of, or determining the admissibility of evidence in, the

state proceedings still to come,” id. at 482-483. Those categories

are inapplicable because: (1) even if this Court were to review the

decision of the Arizona Supreme Court, substantial further state-

court litigation would be needed to adjudicate parties’ actual water

rights, regardless of this Court’s decision; (2) if petitioners are

dissatisfied with the state courts’ ultimate determination of their

water rights, there should be no impediment to petitioners’ re-

assertion of their constitutional claim at the conclusion of the state-

court proceedings; and (3) reversal of the Arizona Supreme Court’s

decision on the takings issue would not be preclusive of any further

litigation.

Il

2. Even if the decision of the Arizona Supreme

Court were final, that decision would not warrant the

Court’s review. Under Arizona law, petitioners had no

property interest that the state court’s decision could

have taken. Even if petitioners possessed such a pro-

perty right, this case would be a poor vehicle for the

Court’s consideration of the question whether, and

under what circumstances, a state court’s elaboration of

state property law principles effects a taking requiring

the payment of just compensation. In any event, the

decision of the Arizona Supreme Court reflects no

dramatic departure from that court’s precedents.

a. The gravamen of petitioners’ takings claim is that

the decision below “transform(ed] vast quantities of

what had formerly been percolating g[r]oundwater into

subflow that is suddenly subject to appropriation.” Pet.

12. The Arizona Supreme Court has long held, how-

ever, that under state law, groundwater users have no

property interest in “potential, future groundwater

use.” Pet. App. A33 (quoting In re Rights to the Use of

the Gila River, 830 P.2d at 451); see also Lucas v. South

Carolina Coastal Council, 505 U.S. 1008, 1016 (1992)

(recognizing that property rights are ordinarily deter-

mined by reference to state law). Petitioners’ takings

claim must fail for that reason alone.

In Town of Chino Valley v. City of Prescott, 638 P.2d

1324 (Ariz. 1981) (in banc), appeal dismissed, 457 U.S.

1101 (1982), the Arizona Supreme Court considered a

challenge by a groundwater user to Arizona’s newly

enacted Groundwater Management Act of 1980. See id.

at 1825 & n.*. One of the groundwater user’s claims

was that the statute took property without just com-

pensation. See 7d. at 1326. In rejecting that contention,

the Arizona Supreme Court squarely held “that there is

no right of ownership of groundwater in Arizona prior

12

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.” Jd. at 1328.

Arizona courts since Town of Chino Valley have

consistently recognized that overlying landowners do

not own subsurface percolating groundwater prior to

its capture and withdrawal. See, e.g., Jn re Rights to the

Use of the Gila River, 830 P.2d at 451; Atkins v.

Arizona Dep't of Water Res., 743 P.2d 946, 950-951

(Ariz. App. 1987). Federal courts have also recognized

that principle of Arizona law. See Cherry v. Steiner,

543 F. Supp. 1270, 1277-1278 (D. Ariz. 1982), aff’d, 716

F.2d 687, 691-692 & n.1 (9th Cir. 1983), cert. denied, 466

U.S. 931 (1984). Although petitioners argue that Town

of Chino Valley “merely acknowledges the fact that the

Legislature may prospectively regulate groundwater

uses” (Pet. 21), that characterization simply ignores the

relevant portion of the opinion.‘

4 Petitioners also contend (Pet. 22-24) that the Groundwater

Management Act—the statute at issue in Town of Chino

Valley—creates statutory rights to the use of groundwater and

that those rights have been taken by the Arizona Supreme Court’s

interlocutory ruling in this case. That claim lacks merit. The

Groundwater Management Act regulates the manner in which

groundwater is managed once it has been identified, but it does not

speak to the question whether particular water is groundwater (as

distinct from surface water or subflow). Indeed, the statute

specifically states that it “shall not be construed to affect decreed

and appropriative water rights. Nothing in this chapter shall be

construed to affect the definition of surface water in [Ariz. Rev.

Stat. Ann.] § 45-101 and the definition of water subject to

appropriation in § 45-141.” Ariz. Rev. Stat. Ann. § 45-451.B (West

1994 & Supp. 2000). The statute is thus irrelevant to petitioners’

claim that the Arizona Supreme Court has taken their property by

defining as subflow that which was previously regarded as ground-

water.

13

b. As petitioners recognize (Pet. 29), this Court has

never directly addressed the question whether a state

court’s deviation from previously applicable property

law principles can effect a taking that requires the

payment of just compensation. Cf. Corporation of the

Presiding Bishop of the Church of Jesus Christ of the

Latter-Day Saints v. Hodel, 830 F.2d 374, 381 (D.C. Cir.

1987) (“The question of whether courts, as opposed to

legislative bodies, can ever ‘take’ property in violation

of the Fifth Amendment is an interesting and by no

means a settled issue of law.”), cert. denied, 486 U.S.

1015 (1988). The instant case does not provide an

appropriate vehicle for resolving that question.

Petitioners acknowledge (Pet. 28) that the Arizona

Supreme Court in this case did not disavow any of its

prior holdings, but instead articulated its decision as an

application of existing precedents. As we explain below

(pp. 14-16, infra), the state court’s decision reflects a

reasonable interpretation of that court’s prior holdings.

But in any event, this Court could reach the question

“whether a radical departure by a state court from its

prior precedents may constitute a taking” (Pet. 29) only

if it first compared the decision below to prior Arizona

Supreme Court water law rulings and concluded that a

“radical departure” had in fact occurred. The need for

that antecedent state-law inquiry is itself a substantial

reason for this Court to deny review.

For other reasons as well, this case provides a poor

vehicle for consideration of the federal question. As we

have explained above (pp. 8-10, supra), the Arizona

Supreme Court’s decision is an interlocutory ruling that

does not purport to quantify the water rights of any

claimant. Because the decision does not resolve the

claims either of petitioners or of any competing clai-

mants, it cannot plausibly be thought to effect a taking

14

of any property in groundwater warranting an im-

mediate federal remedy.’ There is also a serious

question whether any property could have been taken

“for public use,” within the meaning of the Fifth

Amendment, by a judicial opinion that will be used not

to arrogate property to the State, but instead as an

articulation of legal principles to help in resolving

the competing claims of parties to the use of water

resources. See Williams v. Adkinson, 792 F. Supp. 755,

764 n.15 (M.D. Ala. 1992) (declining to find a judicial

taking where the claim was that a state court im-

properly gave one party’s property to another private

party), aff’d, 987 F.2d 774 (11th Cir. 1993); Corporation

uf the Presiding Bishop of the Church of Jesus Christ of

the Latter-Day Saints v. Hodel, 637 F. Supp. 1398, 1406-

1407 (D.D.C. 1986) (same), aff’d, 830 F.2d 374 (D.C. Cir.

1987), cert. denied, 486 U.S. 1015 (1988).

ce. In any event, the Arizona Supreme Court’s

decision in this case effected no radical departure from

that court’s earlier decisions. Petitioners emphasize

that, under the Arizona Supreme Court’s seminal de-

cision in Southwest Cotton, the category of subflow

should be “narrow” and should “{iJn almost all cases

* * * [be] found within, or immediately adjacent to,

the bed of the surface stream itself.” Pet. 11 (quoting

Southwest.Cotton, 4 P.2d at 380-381) (petitioners’ em-

phasis removed). But petitioners’ description of South-

west Cotton omits the most relevant portion of that

5 Although petitioners contend (Pet. 26) that the Arizona

Supreme Court’s decision “must be subjected to an ad hoc factual

inquiry to determine whether it has interfered with reasonable,

distinct, investment-backed expectations regarding property

interests in percolating groundwater,” the current record before

this Court is plainly insufficient to conduct such an inquiry.

15

decision: the test for determining what is subflow. As

the Arizona Supreme Court recognized in Gila River

II, Southwest Cotton established the following rule:

Does drawing off the subsurface water tend to

diminish appreciably and directly the flow of the

surface stream? If it does, it is subflow, and subject

to the same rules of appropriation as the surface

stream itself; if it does not, then, although it may

originally come from the waters of such stream, it is

not, strictly speaking, a part thereof, but is subject

to the rules applying to percolating waters.

Pet. App. C13-C14 (quoting Southwest Cotton, 4 P.2d at

380-381). Petitioners do not mention that test, let alone

explain how the Arizona Supreme Court’s approval of

the “saturated floodplain Holocene alluvium” as the

subflow zone was inconsistent with it.

As the Arizona Supreme Court recognized in Gila

River II, the decision in Southwest Cotton left certain

“ambiguities and uncertainties” and “did not create an

all-encompassing set-of common law principles.” Pet.

App. C17, C25. Thus, while the court in Gila River II

did not “redraw or erase th[e] line” drawn in Southwest

Cotton, it refined the “direct and appreciable diminu-

tion” test to refer to criteria such as elevation, gradient,

chemical makeup, and flow direction. Jd. at C17, C24-

C25. The superior court considered those criteria in

adopting the “saturated floodplain Holocene alluvium”

as the subflow zone. See id. at B54-B58. Petitioners do

not contend that the trial court misapplied those

factors.

Petitioners do argue that the subflow zone ultimately

adopted by the superior court is inconsistent with the

Arizona Supreme Court’s rejection in Gila River II—a

prior interlocutory decision in this same general

16

stream adjudication—of the “50%/90 day” test that the

superior court had previously fashioned. They contend

that the “saturated floodplain Holocene alluvium” is

equivalent to the “younger alluvium,” and that the

Arizona Supreme Court in Gila River I] rejected that

zone as overly broad. Pet. 13 (quoting Pet. App. C26).

As the passage quoted by petitioners indicates, how-

ever, the Gila River II court rejected the “50%/90 day”

test not because of its potential breadth, but because it

was arbitrary and because the superior court had failed

to explain how the test comported with “the tests laid

down in Southwest Cotton.” Pet. 13 (quoting Pet. App.

C26); see also Pet. App. A23 (“Our dissatisfaction with

the 50%/90 day test in Gila River IT stemmed largely

from its arbitrary volume and time components, con-

trary to Southwest Cotton’s mandate.”). In any event,

any inconsistency between two interlocutory rulings of

the same state court in the same case prior to final

judgment is for that court to resolve. It presents no

basis for review by this Court, especially at this stage,

much less the sort of startling departure from settled

rights or expectations that would give rise to a claim

under the Just Compensation Clause.

17

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

BARBARA D. UNDERWOOD

Acting Solicitor General

JOHN C. CRUDEN

Acting Assistant Attorney

General

WILLIAM B. LAZARUS

ANDREW C. MERGEN

Topp S. KIM

Attorneys