Opposition Brief — Phelps Dodge Corp. v. United States
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No. 00-1464
IN THE
Supreme Court of the United States
PHELPS DODGE CORPORATION and
ARIZONA PUBLIC SERVICE COMPANY,
Petitioners,
v.
UNITED STATES OF AMERICA, et al.,
Respondents.
On PETITION 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. SPARKS
Counsel of Record
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
167161 ce
COUNSEL PRESS
(800) 274-3321 + (800) 359-6859
TABLE OF CONTENTS
Page
Table of Cited Authorities... cc cee eee lil
—___—Parties to_this Brief in Opposition —_______________lL
A. The San Carlos Apache Tribe. ........... I
ae. SOND Fe Fees oan iA 2
C. Yavapai-Apache Nation. ................ 3
USING COE 5 SS i a Rs
Teas SUEY OT ATONE Se ee ni 6
PIN ok secs Se ta eve ose he tei ees 7
Reasons for Denying the Writ ................. 12
A. The Court Lacks Jurisdiction. ........... 12
1. 280U.S.C. § 1257(a) Does Not Authorize
the Jurisdiction of This Court. ....... 12
a. No State Law is Questioned by the
Petition for Writ of Certiorari. ... 12
2. The Question Presented Is Not Ripe For
BT EP Eee oe ey mee 13
3. No Constitutional Takings Question
I. Gites dares beaw wee eu 15
4. No Compelling Reason Exists for
Granting the Petition for Writ of
Certiorari.
il
Contents
Page
B. The Previous Decisions of Arizona Courts
Regarding Subflow Conform with the
Decision of the Arizona Supreme Court Gila
River IV and Do Not Constitute a Sudden
Change in AriZOGG LAW. cc sc cccses ences 17
C. The Holding in Gila River IV Does Not
Destroy Vested Property Rights to
Groundwater Because the Potential, Future
Use of Groundwater is Not a Vested Property
Right Under Arizona Law. .............. 23
D. The Decision in Gila IV Does Not Infringe
on Any Groundwater Right, It Merely
Requires the Adjudication of Appropriable
SUMIOW. —. Ls as 0s cee an ek ge Dee 28
Concigmomh ... sa cnn tee 30
ill
TABLE OF CITED AUTHORITIES
Page
Cases: »
Arizona v. California, 283 U.S. 423 (1931) se eeee 4
Arizona v. California, 376 U.S. 340, 11 L. Ed. 2d
Fae Oe es TEES in ccorekissenensaees 8
Arizona v. San Carlos Apache Tribe of Arizona,
Ras EOE nccveccsece 5, 6, 7, 9, 10, 11, 30
Bristor v. Cheatham, 75 Ariz. 227, 255 P.2d 173
ee oes os ak cde ee} ok ck aceas noe 24, 25, 26
Cappaert v. United States, 426 U.S. 128, 48 L. Ed.
Be ee PE es OB UEDTOD cc cctcnaneuecce 8
Cherry v. Steiner, 543 F. Supp. at 1277 (1982)
Be ee seat are x ad & oka Ae oto Wh od ge 8d 27
Cherry v. Steiner, 716 F.2d 687 (1983) .......... 27
Colorado River Water Conservation District v.
United States, 424 U.S. 800 (1976) ........... 10
Cortaro Water Users’ Association v. Steiner, 148
es es FE ele OT CED cc ccccasdaas 23, 24
Globe Equity No. 59, 920 F. Supp. 1444 (D. Ariz.
a lige Ho RAIS al Sl a ag pe ea Cea 5
Howard v. Perrin, 200 U.S. 71, 26 S. Ct. 195
gle Geli Seat ee ree eas ag EO 17
iv
Cited Authorities
Page
In Re the General Adjudication of All Rights to Use
Water in the Gila River System and Source, 175
Ariz.382, 857 P.2d 1236 (1993)... 5,6, 7,9, 21,22 —
In re the General Adjudication of All Rights to Use
Water in the Gila River System and Source, 195
Ariz. 411, 989 P.2d 739 (Ariz. 1999), cert. denied,
530 U.S. 1250, 120 S. Ct. 2705 (2000) ..... 5, 7, 9, 28
In Re the General Adjudication of All Rights to Use
Water in the Gila River System and Source,
198 Ariz. 330, 9 P.3d 1069 (2000) .......... passim
International Longshoreman's & Warehousemen's
Union, Local 37 v. Boyd, 347 U.S. 222 (1954) .. 13
In the Matter of the Rights to the Use of the Gila
River, 171 Ariz. 230, 830 P.2d 442 (1992) .....
ba ek aw abies sade ge eee a ed a, De 4 OR AE eo
Johnson v. Frankell, 520 U.S. 911, 117 S. Ct. 1800,
See ic Se a PUREE sd ka de dccmwnee as 28
Kansas v. Colorado, 514 U.S. 673, 115 S. Ct. 1733,
eee me” Be bo) Sr eens 8
Landmark Communications, Inc. v. Commonwealth
of Virginia, 435 U.S. 829, 98 S. Ct. 1535,
te Ss a SRE es oo eo eee ees 28
Lucas v. South Carolina Coastal Council, 505 U.S.
1OGS, FEZ BS. Ch Dee tie oi veka cn wekcnsas 29
Cited Authorities
Page
Maricopa County Municipal Water Conservation
__ Dist. No. One v. Southwest Cotton Co., 39 Ariz,
6S, 4 P26 DOF CARS: IGS ik ccc alienware passim
Minnick v. California Department of Corrections,
452 US. HOG CURE onic eeaiissdeeiasntens 15
Moses H. Cone Hospital v. Mercury Construction
Comm. GPT 2 CISSS oss hee 10
New Mexico v. Mescalero Apache Tribe, 462 U.S.
ROT TOUAD ko hc candace issn detsee ee |
Pacific Gas & Electric Co. v. State Energy Resources
Conservation & Development Commission,
MGT OR. TOC eee) 605 ONS a ens 13
Pima Farms Co. v. Proctor, 30 Ariz. 96, 245 Pac.
FOP SNA AAA Ae 17
Poulos v. New Hampshire, 345 U.S. 395, 73 S. Ct.
760, 97 E.R GS Ie hie A eee ees 28
Reitman v. Mulkey, 387 U.S. 369, 87 S. Ct. 1627,
AD Es: Sh BE GPO Ce oh ASN 28
Rescue Army y. Municipal Court of Los Angeles,
55s We SORES PETE i kiukeniawewnewkeu beces 15
Robinson v. Arivoshi, 441 F. Supp. 559 (D. Haw.
WEEE an eive aches ebb renee 13,14
= | EP rarer erry oe at Tet ey nts. 13
vi
Cited Authorities
Page
Robinson vy. Ariyoshi, 477 U.S. 902, 106 S. Ct. 3269
4. | POPP rrrrrr rrr ee es 14
San Carlos Apache Tribe et al. v. Superior Court of
Arizona, 193 Ariz. 195, 972 P.2d 179 (1999) ....10,29
Texas v. New Mexico, 462 U.S. 554, 103 S. Ct. 2558,
77 &. BB, 26) GG in os eddie ree 8
Town of Chino Valley v. City of Prescott, 131 Ariz.
78, 638 P.2d 1324(1981) ......... 16, 17, 23, 24, 27
Town of Chino Valley v. State Land Dept., 119 Ariz.
243, FOB P.28 TOR CUSTOD 6 cckdscenadwerancis 24
United States v. J. Ed Smith, 625 F.2d 278 (9th Cir.
ROGGE cn ccbvcentsésbsenenne eee 9
United States v. Santa Fe Pacific Railroad Co.,
313 US. S50 (ISD... vscccasivessss ee l
United States v. Superior Court, 697 P.2d 658
(EDD) a ccccccvcsncepeuevabenessessersaaas 5
Williamson County Regional Planning Commission
v. Hamilton Bank, 473 U.S. 172 (1985) ....... 14, 15
vii
Cited Authorities
United States Constitution:
Fame AGRGUEMONE. oicc cia c cacsecesenes diese
Statutes:
y~ Bie Foe Ce FE ePrreerTs re TT err er
yr BER Come De Peer er rr eerre ree ry eee rs ee
43 UBAn GOD oo 056 C56 ead
PYRG TA FBP rrE Tremere
PEED SARGGS ous Fed cesenviscesesaeeenss
ee Oe, °c 5 cdc ki rad edeadeowous
Pies Se Ps ME 5 bkdai bec peer areeee ese
Rule:
United States Supreme Court Rule 10 ...........
United States Supreme Court Rule 10(c) ........
6, 11
13
26
26
16
—
vill
Cited Authorities
Page
Other Authorities
PC SF VECO TC Pee ee er or reer 23
The Treaty of Guadalupe Hidalgo, 9 Stat. 922,
AE sacks sia a ko OA PhS Rhee eee Os l
Restatement of Law of Torts, Volume IV, Chapter
41, Topic 4, Page 387, Section 860 ........... 24
P.L. 92-470, 86 Stat. 783, October 6, 1972 ....... 2
1
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, et 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 US.
339 (1941); New Mexico v. Mescalero Apache Tribe, 462
U.S. 324, 337 (1983). 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, Articles VIII, IX,
XI, XXII.2.
A. The San Carlos Apache Tribe.
The San Carlos Apache Reservation (“the Reservation”)
was established by Executive Orders cf 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
approximately (1,827,200 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 in 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,
2
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, wildlife, 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
located on the Reservation of the Tribe which is 85 acres
located south of Payson, Arizona in Gila County. One-half
of the Reservation is in the upper Salt 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.
3
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 2,000 members.
In the late winter of 1875, both Tribes were forcibly
removed from the Verde Valley in the “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 Koosevelt 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.
4
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 land 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 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
Arizona represented to the Court that all of the waters
of the Gila River had been appropriated within the state prior
to 1931. Arizona v. California, 283 U.S. 423, 462-3 n.14
(1931). “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 In the Matter of the Rights to the Use of the Gila River,
5
171 Ariz. 230, 232, 830 P.2d 442 (1992) (“Gila River I’’), and
Globe Equity No. 59, 920 F. Supp. 1444, 1448 (D. Ariz. 1996)
(“Globe Equity’).
The Gila River General 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 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. See Jn re the General Adjudication of All
Rights to Use Water in the Gila River System and Source, 195
Ariz. 411, 989 P.2d 739, 742 (Ariz. 1999) (“Gila River IIT’).
In Re the General Adjudication of All Rights to Use Water
in the Gila River System and Source, 198 Ariz. 330, 9 P.3d
1069 (2000) (“Gila River IV’) is the fourth 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.'
1. Jn Re the General Adjudication of All Rights to Use Water in
the Gila River System and Source, 171 Ariz. 230, 830 P.2d 442 (1992)
(“Gila River I), In Re the General Adjudication of All Rights to Use
Water in the Gila River System and Source, 175 Ariz. 382, 857 P.2d
1236 (1993) (“Gila River IT’); Gila River IIT, Arizona v. San Carlos
Apache Tribe of Arizona, 463 U.S. 545 (1983); and United States v.
Superior Court, 697 P.2d 658 (1985). See Appendix to Petitions,
Appendix D, pp. D1 and D2, 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 Issue Two decided in
Gila River IV, and the Arizona Supreme Court’s “Special Procedural
Order Providing for Interlocutory Appeals and Certifications” dated
September 26, 1989, Phelps Dodge Petition, Appendix E.
6
Petitioners have requested the Court to review the effect of
Interlocutory Issue Two as decided in Gila River IV.”
SUMMARY OF ARGUMENT
Gila River IV follows the Court’s decision in Arizona
v. San Carlos Apache Tribe of Arizona, 463 U.S. 545 (1983)
(“San Carlos”), where the Court decided, inter alia, that the
McCarran Amendment provides state courts with jurisdiction
to adjudicate Indian water rights in “comprehensive general
stream adjudications”.
The Court has observed the hydrologic reality that pumping
of underground water sources (“subflow”) can deplete surface
water, as the Arizona court did in Jn Re the General Adjudication
of All Rights to Use Water in the Gila River System and Source,
175 Ariz. 382, 857 P.2d 1236 (1993) (“Gila River IT’). See San
Carlos. Therefore, those who claim the right to pump from
underground water sources, which may interfere with federal
reserved water rights or state water rights of prior appropriation,
must be included in a “comprehensive” adjudication of all water
rights inter sese in the Arizona General Stream Adjudication.
Gila River IV is a decision concerning state water law and
property rights to water by the highest court in Arizona, over
which the Arizona Supreme Court has “binding authority”.
See San Carlos at 561.
The Petitioners present a question which is abstract in
nature. They present no case or controversy. They seek an
advisory opinion from the Court. No water rights have been
decided in the Arizona general stream adjudication. Thus, no
decision has been made by an Arizona court which presents a
factual predicate for review. The status of water rights in Arizona
2. Interlocutory Issue Two relates to what underground water is
“appropriable” under A.R.S. § 45-141. See Petition, Appendix D.
7
has been established through the Arizona courts. No sudden
change has occurred in that status.
Over the years the Arizona courts have more carefully
defined that status. Technical advances have enabled the
Arizona courts to determine the meaning of subflow from a
reliable scientific standpoint. Before the advent of this kind
of technology, surface appropriators rarely could meet their
burden of proof in showing that pumping from underground
water sources was depleting the in-stream flows. Now,
however, surface water appropriators have the technology
to prove the elements of the holding in Maricopa County
Municipal Water Conservation Dist. No. One v. Southwest
Cotton Co., 39 Ariz. 65, 4 P.2d 369, 377 (Ariz. 1931)
(“Southwest Cotton’). They should be permitted to do so.
ARGUMENT
The Apache Tribes’ respond to the Petition filed by
Phelps Dodge and Arizona Public Service Company.‘
Eighteen years after the Apache Tribes were before this
Court in San Carlos, not a single water right has been
3. 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 Gila River II.
See also Gila River I (Interlocutory Issue 1) (trial court procedures
approved, including service by mail); and Gila River ITI (Interlocutory
Issues 4 and 5), cert. denied, 530 U.S. 1250, 120 S. Ct. 2705 (2000).
4. See Petitions for Writ of Certiorari filed by, Phelps Dodge
Corporation, et al. (“Phelps Dodge) v. United States, et al.,
No. 99-1388; and Phelps Dodge, et al. v. United States, et al., No. 00-
1464. Phelps Dodge and the Arizona Public Service Company (“APS”)
petition seeks review by this Court of Interlocutory Issue Two decided
by the Arizona Supreme Court regarding the characterization of
appropriable underground water “subflow” by that court.
8
adjudicated in the Arizona stream adjudication, and none are
threatened to be adjudicated in the foreseeable future.°
The Apache Tribes appeared and have faithfully
participated in the Arizona proceedings. See San Carlos at 545
n.17. As instructed by the Court in San Carlos, the Arizona
courts have thus far honored the “solemn obligation to follow
federal law.” Jd. at 571.
The Court has long recognized that pumping from
“underground water sources” can “materially” deplete “usable”
stream flow, Kansas v. Colorado, 514 U.S. 673; 115 S. Ct.
1733; 131 L. Ed. 2d 759 (1995) (“Kansas v. Colorado’”’), and
other surface water supplies Cappaert v. United States, 426
U.S. 128, 48 L. Ed. 2d 523, 96 S. Ct. 2062 (1976) (“Cappaert’’),
sometimes at great distances.° See also Arizona v. California,
376 U.S. 340, 347-349, 350, 11 L. Ed. 2d 757, 84S. Ct. 755
(1964) (“the Gila River and its underground water sources”).
In Cappaert this Court found that “. . . the evidence showed
the [g]roundwater and surface water are physically interrelated
as integral parts of the hydrologic cycle.” Jd. at 142. On the
Pecos River, the Court observed that “If development in New
Mexico were not restricted, especially the ground water
pumping near Roswell, no water at all might reach Texas in
many years.” Texas v. New Mexico, 462 U.S. 554, 557, 103 S.
Ct. 2558, 77 L. Ed. 2d 1 (1983).’
5. Moreover, there has been no adjudication of any federal or
state water rights in Arizona at anytime during the last 27 years, since
the first general stream adjudication proceeding was initiated in 1974.
6. “2 ‘4 miles from Devils Hole”, Cappaert at 426 U.S. 128, 133,
approximately 205 miles “Pueblo, Colorado to Garden City, Kansas”
Kansas v. Colorado at 677.
7. Id. at557n.2 “The nonflood “base” flow of the Pecos below
Alamogordo Dam is supplied to a large part by groundwater aquifers
(Cont'd)
9
The Arizona Supreme Court ruled that the adjudication
of the “Gila River and its sources” included its “underground
water sources.” See San Carlos. Petitioners contest the
holding of Arizona’s highest court, which has recognized
this hydrologic connection under Arizona state law.
The Arizona decision which requires those who pump from
the underground water sources of the Gila River, classified
as “subflow”, to participate in the inter sese adjudication of
their claims in the Arizona general stream adjudication.
Petitioners argue here that the Supreme Court of Arizona
has created a new definition of “subflow” as it applies to
Arizona’s system of prior appropriation, and that the decision
constitutes a “sudden and unpredictable” definition and
results in a taking of vested property rights to groundwater.
As argued in Point C, infra, there is no vested property right
to groundwater under Arizona law.
Arizona’s groundwater law already 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.” 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.” Jd at 744. Arizona has
not. See also Gila River II, 857 P.2d at 1240.
The Arizona Supreme Court by choice has not abandoned
this bifurcated system largely due to the fact that the system
(Cont’d)
that empty into the river in the reach between Acme and Artesia,
N.M. The operation of these aquifers is little understood. They are
depleted by pumping from wells in the Roswell area, and there is
some suggestion that at times heavy groundwater pumping in the
area around Roswell may actually reverse the direction of flow of
the underground aquifer, so that water flows away from the river.”
10
defining subflow as part of an appropriable stream “serves to
protect appropriable surface water rights against interference
caused by the pumping of groundwater’. See Gila River IV at
1073-4 (2000). Surface water “prior appropriation” rights are
the foundation of both agricultural and municipal development
in Arizona. Appropriated water is a vested property right in
Arizona, whereas groundwater pumping of “percolating” water
is not.* Respondents are aware of no cases which would allow
a person to defeat a “prior appropriation” right by merely drilling
a well.
The Arizona Supreme Court ruling contested by Phelps
Dodge and APS requires pumpers of underground water of the
Gila River to participate in the adjudication as is necessary to
avoid piecemeal adjudication.’ At this point in the Arizona
proceedings, the holdings of the Arizona Supreme Court merely
assure that the 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 v. United States, 424 U.S. 800, 813 (1976)
(“Colorado River”). Gila River I. Without including pumpers
of underground water sources, who may interfere with the flow
of the Gila River, the General Stream Adjudication will not be
a “comprehensive” adjudication of all the rights to the Gila River
System and Source as contemplated by the Court and Congress.
In San Carlos, the Apache Tribes complained to the Court,
inter alia, that under the McCarran Amendment, 43 U.S.C.
§ 666, the Arizona stream adjudication would not constitute a
comprehensive judicial proceeding, because it failed to include
claimants who pump from underground sources which
8. See San Carlos Apache Tribe et al. v. Superior Court of
Arizona, 193 Ariz. 195,189, 972 P.2d 179 (1999).
9. Moses H. Cone Hospital v. Mercury Construction Corp.,
460 U.S. 1, 16 (1983).
1]
threatened the streams, springs and underground water sources
upon which the Apache Tribes were dependent for present and
future uses.
The Court found that the McCarran Amendment reflected
“‘a clear federal policy” of avoiding “piecemeal adjudication of
water rights in a river system,” and that federal law would protect
Indian water rights in state court, and that state court decision
could be reviewed by the Court “after final judgment” of the
State Court. San Carlos at 552,
State courts, as much as federal courts, have a
solemn obligation to follow federal law. Moreover,
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
with the powerful federal interest in safeguarding
those rights from state encroachment.
Id. at 571.
The Petitioners complain now that the Arizona Supreme
Court has ruled that these Petitioners, and others, who pump
water from wells which may impact the water nights under
Federal law, or surface rights under State law, A.R.S. § 45-
141, et seq., must appear and adjudicate their claims to water
inter sese in the comprehensive stream adjudication.
The Arizona Supreme Court has determined that
appropriable water includes certain hydrologically connected
underground water sources of river subflow under state law.
Petitioners present no federal question as to the definition of
subflow presents itself to this Court. Because the Arizona
Supreme Court has ruled on this issue, this Court should defer
to the decision of Arizona’s highest court on issues of state
law.
a
12
The groundwater pumpers have no reasonable
investment backed expectations in pumping groundwater
located in the subflow zone as clarified in Gila River IV.
Petitioners’ argument is based on their own interpretation
of the meaning of subflow from Southwest Cotton while
ignoring the warnings of the court in that and other cases.
Property rights cannot be created in the minds of individuals.
They must be created and recognized by the law. Petitioners
are attempting to assert a property right that does not exist.
For these reasons, their Petition for Wnt of Certiorari should
be denied.
REASONS FOR DENYING THE WRIT
A. The Court Lacks Jurisdiction.
1. 28 U.S.C. § 1257(a) Does Not Authorize the
Jurisdiction of This Court.
a. No State Law is Questioned by the Petition for
Writ of Certiorari.
Petitioners allege that this Court has jurisdiction pursuant
to 28 U.S.C. § 1257(a).'° The statute specifically states that
Final judgments or decrees rendered by the
highest court of a State in which a decision could
be had, may be reviewed by the Supreme Court
by writ of certiorari ... where the validity of a
statute of any State is drawn in question on the
ground of its being repugnant to the Constitution,
treaties, or laws of the United States . ..
28 U.S.C. § 1257(a).
10. See Petition, p. 2.
13
Petitioners allege that the State statutory provision
involved in this Petition is Arizona Revised Statutes (A.R.S.)
§ 45-141.A, which states:
The waters of all sources, flowing in streams,
canyons, ravines or other natural channels, or in
definite underground channels, whether perennial
or intermittent, flood, waste or surplus water, and
of lakes, ponds and springs on the surface, belong
to the public and are subject to appropriation and
beneficial use as provided in this chapter.
However, this State statute is not the subject of the Petition
for Writ of Certiorari at all. Petitioners are presenting the
question of whether or not a judicial decision can constitute
a taking of property. The validity of A.R.S. § 45-141.A. is not
being called into question by Petitioners and thus, the Court
should not accept jurisdiction on this ground.
2. The Question Presented Is Not Ripe For
Adjudication.
A question presented to the United States Supreme Court
must be ripe for adjudication. Ripeness insures that the
Court will make a reliable decision and avoid “premature
adjudication”. Pacific Gas & Electric Co. v. State Energy
Resources Conservation & Development Commission, 461 U.S.
190 (1983). “Determination of the scope and constitutionality
of legislation [or judicial opinions] in advance of its immediate
adverse effect in the context of a concrete case involves too
remote and abstract an inquiry for the proper exercise of judicial
function.” /nternational Longshoreman’s & Warehousemen's
Union, Local 37 v. Boyd, 347 U.S. 222 (1954).
Robinson v. Ariyoshi, 753 F.2d 1468, 1471 (9th Cir. 1985)
held that a case or controversy existed for the district court to
hear regarding the change in Hawaiian property law as
announced by the Hawaii Supreme Court in Robinson v.
14
Ariyoshi, 441 F. Supp. 559 (D. Haw. 1977). The Court granted
certiorari in the case, vacated the judgment of the Ninth Circuit
and remanded the case for further consideration in light of
Williamson County Regional Planning Commission v. Hamilton
Bank (hereafter “Williamson”), 473 U.S. 172 (1985).
See Robinson v. Ariyoshi, 477 U.S. 902, 106 S. Ct. 3269 (1986).
Williamson held that the takings question regarding various
zoning regulations in Tennessee was premature and not ripe
for adjudication
[b]ecause respondent has not yet obtained a final
decision regarding the application of the zoning
ordinance and subdivision regulations to its property
... As the Court has made clear in several recent
decisions, a claim that the application of government
regulations effects a taking of a property interest is
not ripe until the government entity charged with
implementing the regulations has reached a final
decision regarding the application of the regulations
to the property at issue. Id. at 186. [Emphasis added].
Although Williamson pertains to zoning regulations, this
Court in Robinson v. Ariyoshi, 477 U.S. 902, utilized Williamson
to remand the case for further consideration. Thus, even the
question of a judicial taking must allege harm to the specific
land or well, in question. In the matter now pending before the
state court, there is no “particularized” concrete injury as to
any of Petitioners’ wells at this time.
The Petitioners present no case or controversy that is ripe
for adjudication by this Court. While the method of determining
subflow is a final judgment of the Arizona Supreme Court, the
issue of whether or not the determination of subflow by the
Arizona Supreme Court is a taking as to a specific well is not
ripe. The next step in the complex Gila River General Stream
Adjudication is to determine whether or not wells located in or
near the saturated floodplain alluvium are actually pumping
15
subflow in derogation of the vested property rights of prior
appropriators on the Gila River. No final determination has been
made by an Arizona court as to whether any well is actually
pumping appropriable surface water. Until such time as a
determination is made as to the Petitioners’ wells, Petitioners
cannot allege a “particularized injury” or taking, even assuming
that they had a vested property right to groundwater.'' Phelps
Dodge and APS do not allege and cannot show any harm or
injury in fact which has been caused by the Arizona Supreme
Court’s opinion in Gila River IV.
Phelps Dodge and APS are seeking an advisory opinion
from the United States Supreme Court. The Court should decline
discretionary certiorari review in this matter, where further
Arizona state court proceedings will present a clean-cut and
concrete question after Petitioners’ wells have been adjudicated.
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).
3. No Constitutional Takings Question is Presented.
28 U.S.C. § 1257(a) also confers jurisdiction on this Court
for matters “where any title, right, privilege, or immunity is
specially set up and claimed under the Constitution ...”
Petitioners allege that their property rights to groundwater have
been violated in contradiction to the Fifth Amendment to the
United States Constitution which prohibits the taking of private
property for public use without just compensation.
Petitioners’ claim that groundwater is a vested property
right is incorrect under the long standing statutory and
common law of the State of Arizona, which is incorrect.
11. The issue of a judicial taking is simply not ripe in this case
because, as Williamson states, “those factors simply cannot be
evaluated until the administrative agency [or judiciary] has arrived
at a final, definitive position regarding how it will apply the
regulations at issue to the particular !and in question.” id. at 191.
16
See Point C, infra. Without a property interest, Petitioners cannot
properly allege a taking and this Court should therefore not
accept jurisdiction.
4. No Compelling Reason Exists for Granting the
Petition for Writ of Certiorari.
Rule 10 of the Rules of the Supreme Court of the United
States, allows a Petition for Writ of Certiorari to be granted
“only for compelling reasons”. Petitioners claim that the Court
should grant the Petition because the state court has decided an
important question of federal law pursuant to Rule 10(c).'
The Arizona Supreme Court in Gila River IV decided a purely
state common law issue regarding the definition of subflow.
In order for this Court to decide whether or not a taking has
occurred in violation of the Fifth Amendment to the
Constitution, this Court would have to overrule the state
common law that no vested property right exists to groundwater
in Arizona. The Arizona Supreme Court is clear on this issue,
however No property right to the potential, future use of
groundwater exists in Arizona. See Point C, infra. Because the
Arizona courts have already decided this common law issue,
the subsequent ruling in Gila River IV that the determination of
subflow is not a taking of any purported groundwater property
rights was entirely appropriate. Thus, no federal question or
compelling justification exists for accepting the Petition for
Review.
Petitioners also allege that the Anzona Supreme Court
“rejected the Petitioners takings arguments without any analysis
of [the United States Supreme Court’s] precedents concerning the
takings clause of the Fifth Amendment, and it did so in a way that
clearly conflicts with those precedents.” See Petition, p. 10.
The Anzona Supreme Court dispensed with an in depth takings
analysis because under Arizona common law, “a well owner does
not own underground water’, Town of Chino Valley v. City
12. See Petition, p. 10.
17
of Prescott, 131 Ariz. 78, 82, 638 P.2d 1324, 1328 (1981),
and because landowners have ‘no legally recognized property |
right in potential, future groundwater use,’ Gila River /], 171
Ariz. at 239, 830 P.2d at 451, the constitutional argument is
substantively without merit.” Gila River IV at 344. No reason
existed for the Arizona Supreme Court to develop a takings
analysis because the crucial element of property for that
analysis does not exist.
B. The Previous Decisions of Arizona Courts Regarding
Subflow Conform with the Decision of the Arizona
Supreme Court Gila River IV and Do Not Constitute
a Sudden Change in Arizona Law.
In Southwest Cotton, the Arizona Supreme Court began
to define subflow under the common law of Arizona.
“The real question involved [in Southwest Cotton] is the law
applicable to the relative rights to the ownership and use of
the subterranean waters of the state as against those of surface
waters.” /d. at 70. The plaintiffs in Southwest Cotton argued
that percolating waters were subject to appropriation and that
the waters to which they claimed an appropriative right were,
“on the contrary, subterranean waters running in channels
with well-defined and known banks, and therefore of the class
of waters admittedly subject to appropriation under the law
of Arizona.” Jd. at 84. The court first held that percolating
groundwater, the groundwater which is not part of the natural
stream or its subflow, is not appropriable under state law.
Id. at 79. The court then went on to define subflow.
For underground waters to be classified as subflow,
according to Southwest Cotton, they must meet certain
standards. Those standards require that the subsurface waters
have “substantially like characteristics with surface water”.
Id. at 86. See also Howard v. Perrin, 200 U.S. 71, 26 S. Ct.
195 (1906); Pima Farms Co. v. Proctor, 30 Ariz. 96, 245
P. 369.
18
The characteristics of surface water were discussed in
Southwest Cotton. Those characteristics are a channel,
consisting of a well-defined bed and banks, and a current."’
Current, according to Southwest Cotton, exists where “the water
has a natural motion or current” as opposed to a pond or lake
with water that is substantially at rest. /d. at 87. Therefore, if
subsurface water has substantially the same characteristics as a
defined bed and banks and current, it is considered subflow
and is appropriable in Arizona.
The court in Southwest Cotton defined the test for subflow
as the subsurface water that 1s in or immediately adjacent to a
surface stream and possesses characteristics substantially similar
to that of surface water. id. at 100-01. Unfortunately, this test is
not very defining at all because the term “immediately adjacent
to” is an abstract concept, particularly in light of the discussion
in Southwest Cotton which provides guidance as to how subflow
may be legally proven. The court states that:
While surface indications such as trees, shrubs,
bushes and grasses growing along the course and
topographical features of the surface are the simplest
and surest methods of proof, we think they are by no
means exclusive. Other methods may be used, such as
a series of wells or borings, tunnels, the color and
character of the water, the sound of the water passing .
underneath the earth, the interruption of the flowing of
other wells on the line of the alleged subterranean
stream, geologic formation, and perhaps others.
Id at 87.
The burden of proving whether or not a well is pumping
appropriable subflow lies with the asserting party wherein
pumping is alleged to interfere with the property nghts of surface
water appropriators. /d. at 85.
13. See discussion in Southwest Cotton, at 87.
19
Petitioners contend that Southwest Cotton clearly defines
subflow and that Arizonans have reasonably relied on that
holding when drilling and pumping from their wells. Petitioners
are incorrect in their assertion. Petitioners and others have only
relied on their own interpretation of what Southwest Cotton
meant to them when drilling their wells and pumping subsurface
water. If any doubt is raised at to whether or not Southwest
Cotton clearly defines the location of subflow once and for all,
H the warning of the Arizona court in the following conclusion of
the case should clarify this understanding.
Subterranean waters are necessarily more or less
uncertain as to their very existence, and frequently
incapable of an immediate demonstration of the
results of their appropriation of such a nature
that investors may safely stake their funds and
farmers their future on the success of the project.
If percolating waters are subject to the law of prior
appropriation, and if appropriations of other
subterranean waters may be established by mere
b surmise, inference or possibility, the field is open
pi to interminable and uncertain litigation from which
| none will profit in the end but members of the legal
profession, and there will in all probability be a
complete cessation of extensive development work,
due to the impossibility of ascertaining in advance
just what rights will be acquired thereby. It may be
said that this rule means an end to all future large
pumping projects. If these projects are based on the
depletion of surface waters, it is far more economical
both in money and water, and thus better for the
state as a whole, that those surface waters be utilized
through surface developments, as they doubtless will
be when necessity arises. If, on the other hand, they
are based on a use of water which will not affect
surface developments, past or future, there are other
tH principles of law, not necessary for the determination
RFA: Se eet RN SHe S A TRIG Bet
VSS RELAIS
20
of this case, which properly applied, will do justice
to the state and to its individual citizens alike. While
it may be, and doubtless is, true that the effect of
the declaration of public policy made by our
legislature so long ago will be to lessen somewhat
the number and size of future irrigation projects
depending upon pumped water, in our opinion it is
more than compensated by the establishment of
certainty and security for the vastly more important
surface water projects now existing, and which will
doubtless exist in the future.
Id. at 105.
Although the Southwest Cotton court projected that future
pumping activities would be reduced by its holding which placed
a higher priority on surface water, groundwater pumpers did
not heed the court’s warning that subflow exists and 1s subject
to prior appropriation.
Over the past 70 years, and particularly since World War
II, technological advances have provided the means whereby
pumping, even from distant locations can interfere with the-
surface flow of a stream through an enlarged cone of depression
created by the intensive pumping from a well. The more
powerful the pump on a well, the larger the cone of depression
and the more likely that the pump is reaching into the subflow
zone.
The Gila River General Stream Adjudication was initiated
to determine the relative rights of all appropriators of surface
water on the Gila River. It is alleged in the adjudication that
groundwater pumping is causing the depletion of both the
surface waters and subflow in the Gila River in derogation of
the rights of those parties who have appropriated waters from
the Gila River. Before the court in the adjudication could decide
whether or not unlawful pumping of subflow is occurring, it
was necessary to more clearly define the meaning of subflow
LANDA EE CERIO ERA LIEHEINAL. CO NCR a MAIN QISIY Sy yma “Appa prope, Gee er cth test
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21
in sound principles of hydrology. Southwest Cotton's definition
of bed, banks and immediately adjacent to the river, was not
enough information to make that definition. Because of
advances in geology and hydrology, the Arizona Supreme Court,
was able to define subflow in a way that is completely consistent
with the definition in Southwest Cotton. If the groundwater
pumpers had actually heeded the warnings of Southwest Cotton
and ceased such speculative pumping activities, the holding in
Gila River IV would clearly have been a win for the groundwater
pumpers in that they could now move forward with greater ©
certainty that they were not interfering with property rights to
surface waters. They did not heed those warnings. Petitioners
now seek to avoid the ultimate adjudication of their interference
with prior appropriative property rights to surface water.
Petitioners claim that 38% of the total wells in the
San Pedro River Basin are in the trial court’s subflow zone.
See Petition, p. 1. The reason that such a high percentage of
these wells are located in this zone is because that is where the
water is most available. Pumping subflow is much easier
-than pumping groundwater. Petitioners are very sophisticated.
They had no right to rely on the future availability of water
they pumped.
The Gila River IV court was careful to follow its own
precedent in Southwest Cotton."* In Gila River IT, the Arizona
Supreme Court held that the trial court had erred “in adopting
its 50%/90 day test for determining whether under ground water
is ‘appropriable’ under A.R.S. § 45-141.” Gila II. at 386.
The Gila River IT court held that lower court erred in using the
50%/90 day test which evaluates whether or not a particular
well is pumping subflow if “the volume of stream depletion
would reach 50% or more of the total volume pumped during
... [a] period of withdrawal [that] is equivalent to 90 days of
continuous pumping for purposes of technical calculation.”
Id. at 385. The reason for this error, the Arizona Supreme Court
14. See Southwest Cotton at 334-7.
22
stated, is that the 50%/90 day test expanded and changed the
holding in Southwest Cotton because it “did not distinguish
between wells pumping groundwater from tributary aquifers
[which are not subject to prior appropriation] and those pumping
actual subflow of the river.” The 50%/90 day test effectively
expanded the definition of subflow that was “broad enough to
include all underground water hydraulically connected to a
surface stream.” In Arizona, in almost all cases, subflow is those
waters which are generally “found within, or immediately
adjacent to, the bed of the surface stream itself.” Gila River 1V
at 335 (quoting Southwest Cotton at 97). Tributary subsurface
water is not included in the definition of subflow and the 50%/
90 day test failed to account for this precedent as defined by
Southwest Cotton.
The Arizona Supreme Court in Gila River JV went on to
say that “[w]hether 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.” Gila River IV at 336
(quoting Gila River I] at 392). Although the Southwest Cotton
test asks whether or not “drawing off the subsurface water
tend[s] to diminish appreciably and directly the flow of the
surface stream. ..”, the Southwest Cotton court also required
that this drawing off be from the subflow zone of the stream
only. The Gila River IV court finally resolved this requirement
by defining the subflow zone using the evidence of several
hydrological and geological specialists.'* The particularized
analysis of whether or not pumpers are drawing off subflow
from the surface stream is, as stated before, the next step in the
adjudication.
The Gila River IV test for subflow fits squarely with the
precedent set in Southwest Cotton. No sudden change in
15. See Gila River IV at 336-7 for discussion of extensive
testimony involved in the “subflow” determination.
Ly se LI Pegh Pag Ee Ce ONE ye A mM aI ep -
precedent has occurred at all in this litigation and Petitioners
have no sufficient reason to challenge the holding as being a
change in precedent, let alone a sudden and unpredictable
change.
C. The Holding in Gila River IV Does Not Destroy Vested
Property Rights to Groundwater Because the Potential,
Future Use of Groundwater is Not a Vested Property
Right Under Arizona Law.
The Arizona court’s definition of subflow does not
constitute a taking of property rights to present or future
pumping of groundwater. Petitioners cannot claim a taking
where there is no property right to potential, future use of
groundwater and their investments in groundwater pumping are
not reasonable investment decisions in light of the holding in
Southwest Cotton, subsequent Arizona opinions and the
Constitution of the State of Arizona.'® 7
Petitioners urge the Court to find that the Arizona Supreme
Court’s decision in Gila River IV that “landowners have
‘no legally recognized property right in potential, future
’
groundwater use’ ” constitutes an unconstitutional change in
judicial precedent. See Petition, App. A33. First, this is a
decision of Arizona law by Arizona’s highest court. Second,
Petitioners are incorrect in their assertion. Groundwater in
Arizona, when it is in the ground, is not a property right.
“The nght of the owner of the land overlying groundwater is
simply to the ‘usufruct of the water’ and that percolating waters
are ‘like wild animals, free to roam as they please and are the
>, 2
property of no one’.” Cortaro Water Users’ Association v.
16. See Southwest Cotton; Bristor v. Cheatham, 75 Ariz. 227,
255 P.2d 173 (1953); Town of Chino Valley v. State Land Dept.,
119 Ariz. 243, 580 P.2d 704 (1978) (“Chino Valley I"); Town of
Chino Valley v. City of Prescott, 131 Ariz. 78, 638 P. 2d 1324 (1981)
(“Chino Valley IT’); Cortaro Water Users’ Association v. Steiner,
148 Ariz. 314, (1986) (“Steiner”); The Constitution of the State of
Arizona, art. 17, § 1.
24
Steiner, 148 Anz. 314, 319, 714 P.2d 807 (1986) (“Steiner’’)
(quoting Town of Chino Valley -v. City of Prescott, 131 Anz. 78,
82, 638 P.2d 1324, 1328 (1981) (“Chino Valley IT’).
“By the Constitution of Arizona art. 17, § 1, effective at statehood
in 1912, it was provided that the common law doctrine of riparian
water nights ‘shall not obtain or be of any force or effect in the
State’ ”. Chino Valley II at 1326. “Waters percolating beneath the
soil were not included among those subject to appropriation.” /d.
Arizona has adopted the common law doctrine of
reasonable use for underground waters. ““Under the doctrine of
reasonable use property owners have the right to capture and
use the underground water beneath their land for a beneficial
purpose on that land * * *”. Chino Valley II at 1328 (quoting
Chino Valley I at 248). According to the court in Chino Valley,
“{t]his statement we think is supportedby the better reasoned
decisions in this country. In the absolute sense, there can be no
ownership in seeping and percolating waters until they are
reduced to actual possession and control by the person claiming
them because of their migratory character.” id. at 1328.
Petitioners confuse the fact that water, after it is withdrawn
from a well, like a wild animal, becomes property. The right to
chase the animal is not property. And the “claim” to groundwater
for use before it is captured is not property. See Petition, p. 20.
In Arizona, groundwater pumpers cannot enjoin another local
pumper from pumping groundwater that is free to roam so long
as the water is put to a reasonable use, because no property
right to the groundwater exists at that point.'’ The Arizona
17. See Bristor at 179, which quotes the Restatement of Law of Torts,
Volume IV, Chapter 41, Topic 4, Page 387, Section 860 which says:
A possessor of land who, in using the subterranean water
therein, intentionally causes a substantial harm to a
possessor of other land through invasion of the other’s
interest in use of subterranean water in his land, is liable
to the other if, but only if, the harmful use of water is
unreasonable in respect to the other possessor.
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25
Supreme Court in Gila River J and Gila River IV was correct in
its statement that there is “no legally recognized property right
in potential future groundwater use.” Gila River IV at 1083
(quoting Gila River J at 451.)
Petitioners quote Bristor v. Cheatham (“Bristor”’), 75 Ariz.
227, 255 P.2d 173 (1953) in support of their position that
potential, future groundwater use is a property night. See Petition,
p. 21. The Petitioners assert that the doctrine of reasonable use
is a rule of property that protects future groundwater use.
Petitioners misguide the Court. Gila River IV determines
what is appropriable surface water. It does not apply to
groundwater, whatever the status may be. However, in Bristor,
the Arizona Supreme Court held that groundwater users “have
no protection except that offered by the common law as
enunciated in Howard v. Perrin, 8 Ariz. 347, 76 P.2d 460 (1905),
and subsequently approved in Maricopa County Municipal
Water Conservation District No. 1 v. Southwest Cotton Co.,
supra.” Bristor at 234. The common law that is referred to in
Bristor is the reasonable use rule. The doctrine of reasonable
use does not create a property nght to future groundwater use,
nor does it create a night to deplete surface flow. Petitioners
failed to disclose to the Court the most critical restriction on
the rule.
... but it does prevent the withdrawal of
underground waters for distribution or sale for uses
not connected with beneficial ownership or
enjoyment of the land whence they are taken, if it
thereby result that the owner of adjacent or
neighboring land is interfered with in his nght to
the reasonable user of subsurface water upon his
land, or if his wells, springs, or streams are thereby
materially diminished in flow or his land is rendered
so arid as to be less valuable for agriculture,
pasturage, or other legitimate uses.”
Bristor at 237-8 [Emphasis Added].
26
The court in Gila River /V, by ruling that there is no property
right to potential, future groundwater use, followed the
precedents set in its earlier opinions cited above and the
Constitution of the State of Arizona. This affirmation by the
Arizona court neither constitutes a sudden and unpredictable
change in Arizona common law as Petitioners argue, nor does
the holding in Gila River /V encroach on any right of
groundwater pumpers to pump and use groundwater pursuant
to the reasonable use doctrine. The Gila River /V holding merely
requires those pumpers who are likely pumping subflow that is
interfering with the vested rights of a beneficial user of
appropriable surface water to appear in the Gila River
Adjudication according to the holding in Bristor above.
Petitioners have no “reasonable” claim in asserting an
unrestricted property right to potential future groundwater use
that interferes with vested property rights.
Petitioners also argue that the Arizona legislature has
created numerous statutory rights to the future use of
groundwater. See Petition, p. 22. Petitioners are once again
incorrect.
The Arizona legislature, in passing the Groundwater
Management Act, merely regulated the “race to bedrock”
in the use of groundwater in Arizona, particularly in the
Active Management Areas (“AMAs”), which are areas
where groundwater resources are most threatened. These
areas are typically areas of high population concentration.
See A.R.S. § 45-411, et seg. The Act permits the preservation
of certain types of groundwater pumping as grand fathered
rights, such as for irrigation purposes. See A.R.S. § 45-461,
et seq. These rights allow groundwater pumpers to continue to
withdraw groundwater for certain identified uses that have
occurred in the past. However, this “grandfathering” of
groundwater for certain uses does not guarantee that there will
be any water available for them to pump, as Petitioners seem to
assert. It merely allows historic types of use to be continued
27
into the future so long as the groundwater user can capture the
“roaming” groundwater below. No property right to the future
use of groundwater could be reasonably found from the
Groundwater Management Act passed by the Arizona legislature
as Petitioners assert. See Petition, p. 23. Certainly, no mght was
created by the legislature for groundwater pumpers to interfere
with prior appropriative surface water rights.
Petitioners assert that several other sections of the
Groundwater Code create and recognize property rights in the
potential future use of groundwater. Petitioners incorrectly
assume that a statutory authorization to acquire permits to drill
wells, creates a property right to the groundwater that is not yet
captured.
The non-property status of groundwater in Arizona has also
been affirmed by the Ninth Circuit Court of Appeals in Cherry
v. Steiner, 716 F.2d 687 (1983) (“Cherry i7’). Plaintiffs in that
case alleged that the enactment of the Anzona Groundwater
Management Act of 1980 violated their use and enjoyment of
the water beneath their property to which they asserted a
property right. The United States District Court for the District
of Arizona held that prior decisions of Arizona courts did not
establish a proprietary interest in groundwater, and that Chino
Valley II was not a radical departure from prior law, and thus
does not violate property nghts. See Cherry v. Steiner, 543
F. Supp. at 1277 (1982) (“Cherry I’). In affirming the Federal
District Couit holding, the Ninth Circuit has both affirmed that
no property right exists to groundwater in Arizona, both under
Cherry I, Cherry II and Chino Valley II.
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 those who pump from underground water
sources (“subflow’’) of the Gila River are depleting stream flows
that are necessary to fulfill the purposes for which federal
28
reservations were established. See Gila ///. In the present case,
the Arizona court has defined pumping which interferes with
state surface water rights. This Court honors the decisions of
the States’ highest court when interpreting state law."
Because the right to potential future groundwater use is
not guaranteed in Arizona, no property right can exist to that
groundwater. The only right groundwater users have to
groundwater is the right to attempt to capture that water and
put it to some kind of reasonable use. Arizona has a long
established system where surface water rights are the most
certain property nghts through prior appropniation and beneficial
use, and are constitutionally protected. Groundwater rights,
however, are subject to reasonabie use and are not vested
property rights. See Southwest Cotton. For an Arizona court to
hold otherwise, would suddenly and unpredictably change the
status of all water rights in Arizona. Petitioners’ arguments
regarding the status of the future and potential use of
groundwater as a property nght are without merit. The Court
should reject Petitioners’ Writ of Certiorari for lack of
establishing a property right that could be infringed upon.
D. The Decision in Gila IV Does Not Infringe on Any
Groundwater Right, It Merely Requires the
Adjudication of Appropriable Subflow.
Assuming arguendo that Petitioners do have a right to
potential, future groundwater use, they still have no claim under
the holding in Gila River IV. Petitioners argue that their right to
pump groundwater will be precluded by subjecting them to the
decision in Gila River [V. Groundwater is not the subject of the
18. Johnson v. Frankell, 520 U.S. 911, 916, 117 S. 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. v. Commonwealth of Virginia, 435 U.S. 829,
838, 98 S. Ct. 1535, 1541, 56 L. Ed. 2d 1 (1978); and Reitman v.
Mulkey, 387 ~'.S. 369, 378-379, 87 S. Ct. 1627, 1633, 18 L. Ed. 2d
830 (1967).
29
Gila River Adjudication at alt. The Adjudication will determine
the relative rights of all owners of property rights to the waters
of the Gila River and its sources. The potential and future use
of these surface and subflow nights are state property rights in
Anzona under the doctrine of prior appropriation and beneficial
use.'” Where groundwater pumpers are interfering with those
property rights, the Arizona Courts are permitted to enjoin
this activity.*? The Gila River Adjudication will decide the
inter sese rights to the Gila River and its sources, not of
groundwater. Thus, legally, there could be no taking of
groundwater by the Gila River Adjudication court.
19. See San Carlos Apache Tribe, et al. v. Superior Court of
Arizona, 193 Ariz. 195, 205, 972 P. 2d 179 (1999). (“We agree
with Judge Bolton’s conclusion that the water rights of the parties
in the Gila and Little Colorado general stream adjudications are
vested substantive property rights.”).
20. See Lucas v. South Carolina Coastal Council, 505 U.S.
1003, 1030, 112 S. Ct. 2886 (1992). (“The use of these properties
for what are now expressly prohibited purposes was a/ways unlawful,
and. . . it was open to the State at any point to make the implication
of those background principles of nuisance and property law
explicit.”).
30
CONCLUSION
The definition of subflow determined by the Gila River
IV court concerns appropriable surface water. It does not
expand any definition of subflow that existed in the past.
It clarifies the definition of subflow. It requires those
who pump surface water as “subflow” to participate in the
comprehensive stream adjudication. To exclude them is to
ignore the Courts’ instruction in San Carlos.
The Petition for Writ of Certiorari filed by Petitioners
Phelps Dodge and APS attempts to complicate and mislead
the Court to avoid the consequences of the inter sese
adjudication of rights to the Gila River and its sources.
This Court should not permit Phelps Dodge and APS to
muddy those waters. The Court lacks jurisdiction, and there
is no takings question presented.
For the reasons set forth in this Response, the Petition
for Writ of Certiorari should be denied.
Respectfully submitted,
Joe P. SPARKS
Counsel of Record
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
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.