Opposition Brief — Phelps Dodge Corp. v. United States

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No. 00-1464 | MAY 21 200; | |

L_OSEICE OF TR cnuex

IN THE inser acinar,

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 RESPONDENT

GILA RIVER INDIAN COMMUNITY

Ropney B. Lewis

Counsel of Record

STEVEN J. W. HEELEY

JOHN T. HESTAND

JAMES D. HILL

RUTH E. KOESTER

TIMOTHY L. PIERSON

Attorneys for Respondent

Gila River Indian Community

5002 North Maricopa Road

Box 5090

Chandler, Arizona 85226

(520) 796-1344

167160 ce}

COUNSEL PRESS

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

i

QUESTION PRESENTED

Does a state supreme court decision interpreting long-

standing and unique state law warrant United States Supreme

Court review?

il

TABLE OF CONTENTS

Page

Question Presaated. 2... 5.554556 i

Table of COM 2 60.50 kanscucsaee eee eeu il

Table of Cited AuGheguas « ... cissikaxe wees tea aa Vv

Supplemental Statutory Provisions Involved In The

PT Or oe an Mp rae l

Statement of the COGS. 4. ccssdenew eee eeee ee 2

A. History Of Arizona Water Law ........... 2

B. History Of The General Adjudication Of All

Rights To Use Water In The Gila River

System Aud SOUS ask i cdccscsvawienees 5

ALQOUNOM oso cess eee eee 8

There Is No Compelling Reason To Grant

Certiorari. Certiorari Should Be Denied.

weesetiscd ae ke Cae eee eae aay 8

I. The Arizona Supreme Court Decision,

In Gila River IV (The Opinion Below),

Does Not Conflict With Or Reverse

Previous Decisions Of The Arizona

Supswne COU. 555 case 8

Il.

IT].

IV.

iil

Contents

A. The Decision Of The Arizona

Supreme Court, Concerning

Subflow, Followed Established

Arizona Precedent And Was

Not Sudden, Unpredictable, Or

I, Sig eeta ei ba vais oe

B. No Rights, Vested Or Other-

wise, Have Been Taken From

ET REIS

The Arizona Supreme Court Has Not

Changed Long-Standing Arizona Law

Concerning Percolating Underground

PE oh ac ek Se bg ds eek cee ee kee Ae

The Language, In Gila River IV, Pertaining

To Percolating Water Is Dictum And Not

Subject To Review By This Court. .......

The Decision Of The Arizona Supreme Court

Did Not Constitute A Taking Of Property

Without Compensation In Violation Of The

I Oe POE OP ae

A. Petitioners Have No Property To Be

Page

24

iv

Contents

Page

B. Changing The _ Interpretation

Of State Common Law Does

Not Constitute A Taking Of Property

In Violation Of The Fifth

PUES. so 44 hve kaweabues 25

Conclusion

TABLE OF CITED AUTHORITIES

Page

Cases:

Arizona Public Service Company v. Long, 160 Ariz.

EID, FTF PRE FOS CAST 65k oe esac ee aees 21, 25

Arizona Water Company v. City of Bisbee, 172 Ariz.

176, $36 P.2d 369:(Agp. 1992) «2.000 eee ceins 21,25

Baldwin v. New York, 399 U.S. 117, 90S. Ct. 1914,

a i. HE: FESO GSA: 3 ie ier ets 26

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

CROSSE 5 oi evidence peak cee trea ae 4

Cherry v. Steiner, 543 F. Supp. 1270 (1982) ...... aa, 52

Cherry v. Steiner, 716 F.2d 687 (1983) .......... 23

Hertz v. Woodman, 218 U.S. 205, 30 S. Ct. 621,

OG L.. Be. FG SU ss oe ekekaee eee ele 26

Howard vy. Perrin, 8 Ariz. 347, 76 P. 460 (1904) .. 2,20

In re the General Adjudication of All Rights

to Use Water in the Gila River System and Source,

175 Ariz. 362, 857 P20 1236 (1995) -.... 2.5. passim

In re the General Adjudication of All Rights to Use

Water in the Gila River System and Source, 195

Raia. 44:3, SOD P26 TIP CII OND nes ore owas 6,14

vi

Cited Autho. ties

Page

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

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

River, 171 Ariz. 230, 830 P.2d 442 (1992) (Gila

Rover Dh oc cicssscsnciviviageisawwseesae 6, 21, 22

Jarvis v. State Land Department, 106 Ariz. 506,

479 P26 LOD CIRTOD. cccacncdinnecssatiaten 4

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

130 .L.. BG. 20 Pe Gio ry cd scaseisasizesuees 17

Maricopa County Municipal Water Conservation

District v. Southwest Cotton Co., 39 Ariz. 65,

& P.4G SOP CIFSE hi kwko0sk5 0000s passim

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

766, 97 ©. ER. FRG GAReee 5 ohn sesso decucuwns 17

Town of Chino Valley v. City of Prescott, 131 Ariz.

78, 638 P.2d 1324 (1981) .... 5, 20, 21, 22, 23, 25, 27

Town of Chino Valley v. City of Prescott, 457 U.S.

1101, 102 S. Ct. 2897, 73 L. Ed. 2d 1310 (1982)

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

265, G97 P28 G6 CBSRSY 5c dis épntcsbiaskes 5

vil

Cited Authorities

Page

Wainright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497,

PS hs A PREPPED ddd eewabenceseanaes 17

Webb's Fabulous Pharmacies, Inc. v. Beckwith,

449 U.S. 155, 10! S. Ct. 446, 66 L. Ed. 2d 358

CORE 60 504665 thn nce dcesNerdead deena 24

United States Constitution:

FREE. oo < Gao cv aencakeueee 22, 24, 25, 27

Fourteenth Amen@mem ... 2... cscccccsccccess 22

Rule:

United States Supreme Court Rule 10 .......... . 8

Statutory Provisions:

Fe ss NE hb Svcs neanccedasen 1,3, 6,9

Ariz. Rev. Stat. § 45-141(A) «.......ccscesceces l

ee me i PPV EPerTTeTrrreye ]

Ariz. Rev. Stat. § 45-231 through 245 ee

Se Se AE veer red Peres Pears See ee a ane 5

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

ee UME Fg, errr rer etre l

vill

Cited Authorities

Ames. Rav. Bist. § 45-2SMA) «oo occ sccsscccicss

Ariz. Rev. Stat. § 45-401, et seg. ...............

Laws of 1919, Chapter 164,§ 1 ................

Revised Statutes of 1887, §§ 3199 and 3201 .....

Revised Statutes of 1928, § 3280 ...............

Treatises and Other Materials:

Clesson S. Kinney, 7reatise on the Law of Irrigation

and the Water Rights (2d ed. 1912) ...........

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

Adjudication in Arizona: Yesterday, Today and

Tomorrow, 27 Ariz. Law Rev. 709 (1985) ......

pedideaxeadtore ti dead aewse ees 5, 6, 9, 19, 23, 24

13

1

SUPPLEMENTAL STATUTORY PROVISIONS

INVOLVED IN THE CASE

Arizona Revised Statutes (A.R.S.) §§ 45-141(A) and (B)

provides:

A. 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.

B. Beneficial use shall be the basis, measure and

limit to the use of water.

A.R.S. § 45-251(7) provides:

]

“River system and source” means all water

appropriable under 45 § 141 and all water subject

to claims based upon federal law.

A.R.S. § 45-252(A) provides:

One or more water users upon a river system and

source, the water rights of which have not been

previously adjudicated under this article and

administered by the director of water resources,

or the state of Arizona upon the request of any

state agency other than the department of water

resources may file a petition to have determined

in a general adjudication the nature, extent and

relative priority of the water rights of all persons

in the river system and source.

2

STATEMENT OF THE CASE

A. History Of Arizona Water Law

The State of Arizona has a unique, bifurcated system

for allocating the use of water. Surface water is subject to

the doctrine of prior appropriation, where the basic rule is

“first in time, first in right.” Under prior appropriation, junior

appropriators are required to give up the use of water, in

times of shortage, in favor of senior appropriators (those

whose water use began at an earlier point in time).

Underground water that is defined as “subflow” is also

subject to the doctrine of prior appropriation. However,

underground water that is defined as “percolating” is not

subject to appropriation, but, rather, is subject to the doctrine

of reasonable use. This distinctive system of water use

allocation developed through a combination of Arizona

statutes and common law.

In 1887, the Arizona Territorial Legislature declared that

all rivers, creeks, and streams of running water, as well as

lakes and ponds, were public property and subject to

appropriation. See Revised Statutes of 1887, §§ 3199 and

3201. In Howard v. Perrin, 8 Ariz. 347, 353, 76 P. 460, 462

(1904), the Supreme Court of the Territory of Arizona

determined that “‘a running stream flowing in natural channels

between well-defined banks” was subject to appropriation

under the statutes, but that “filtrating or percolating water

oozing through the soil beneath the surface in undefined and

unknown channels” was not subject to appropriation.

In 1919, the Legislature of the State of Arizona enacted

a Water Code. See Laws of 1919, Chapter 164, Section 1.

In 1928, this Water Code was amended to read: “The water

3

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 are public and

subject to appropriation.” Revised Statutes of 1928, § 3280.

This language remains in Arizona’s Water Code today, at

Arizona Revised Statutes (“A.R.S.”) § 45-141.

It was against this backdrop that the Arizona Supreme

Court enunciated rules distinguishing between underground

water that was subject to the doctrine of prior appropriation

(i.e., subflow) and underground water that was not subject

to prior appropriation (i.e., percolating). See Maricopa

County Municipal Water Conservation District v. Southwest

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

Cotton”). In Southwest Cotton, the Arizona Supreme Court

held that underground water that constitutes a part of the

surface stream is appropriable, and defined such water as

“subflow.” The court also set forth criteria for determining

subflow.

The underflow, subflow, or undercurrent, as it is

variously called, of a surface stream may be

defined as those waters which slowly find their

way through the sand and gravel constituting the

bed of the stream, or the lands under or

immediately adjacent to’the stream, and are

themselves a part of the surface stream. 2 Kinney

on Irrigation (2d Ed.) par. 1161.

As the names given to this class of waters indicate,

physically they constitute a part of the surface

stream itself, and are simply incidental thereto,

and also in the main depend on the surface stream

4

to which they are incident for the greater part of

their water supply. The best test which can be applied

to determine whether underground waters are as a

matter of fact and law part of the stream is that there

cannot be any abstraction of the water of the

underflow without abstracting a corresponding

amount from the surface stream, for the reason that

the water from the surface stream must necessarily

fill the loose, porous material of its bed to the point

of complete saturation before there can be any

surface flow.

Southwest Cotton, 39 Ariz. at 96, 4 P.2d at 380.

Groundwater that did not constitute “subflow” was defined

as “percolating,” and was not subject to appropriation.

The Arizona Supreme Court did not, at that time, determine the

rules governing use of non-appropriable “percolating water.”

Later Arizona Supreme Court decisions determined that

“percolating” underground water was subject to the doctrine of

beneficial use, and that a landowner could withdraw percolating

water from beneath his own land, for beneficial use on his own

land, without incurring damage for depleting the percolating

water supply of his neighbor. See Jarvis v. State Land

Department, 106 Ariz. 506, 479 P.2d 169 (1970); Bristor v.

Cheatham, 75 Ariz. 227, 255 P.2d 173 (1953).

The Arizona Legislature recognized that water users in the

state were “mining” groundwater at a rate far exceeding its

natural recharge and, beginning in 1948, enacted a series of

laws that culminated, in 1980, in the adoption of the Arizona

Groundwater Management Act. A.R.S. § 45-401, et seq.

This Act established critical groundwater management areas,

and placed restrictions on the pumping and use of percolating

5

groundwater in these critical management areas. In Town of

Chino Valley v. City of Prescott, 131 Ariz. 78, 638 P.2d 1324

(1981) (“Chino Valley IT’), the Arizona Supreme Court rejected

allegations that the Groundwater Management Act

impermissibly took property of landowners, whose land was

over percolating water sources, without compensation.

The Arizona Supreme Court determined that, under Arizona

law, there was no private ownership of seeping or percolating

water until it was reduced to actual possession and control.

131 Ariz. at 82, 638 P.2d at 1328.

B. History Of The General Adjudication Of All Rights To

Use Water In The Gila River System And Source

In 1919, the Arizona Legislature adopted a procedure,

conducted before the Arizona State Land Department, for the

determination of conflicting water rights. See A.R.S. §§ 45-

231 through 45-245 (repealed in 1979). Between 1974 and 1978,

the Salt River Walley Water Users’ Association and Phelps

Dodge Corporation filed petitions to determine conflicting nghts

to use water in the Salt River above Granite Reef Dam, for the

Verde River and its tributaries, for the Gila River, and for the

Little Colorado River. See General Water-Rights Adjudication

in Arizona. Yesterday, Today and Tomorrow, 27 Arizona Law

Rev. 709 (1985). In 1979, the Arizona JLegislature repealed the

administrative procedure and replaced it with the General

Adjudication of Water Rights statutes (A.R.S §§ 45-251 to 45-

260). See United States v. Superior Court of Arizona, 144 Aniz.

265, 271, 697 P.2d 658, 664 (1985).

Thereafter, adjudication of all water rights in the Salt,

Verde, Gila, Agua Fria, Upper Santa Cruz, and San Pedro River

watersheds was consolidated into one general adjudication

entitled Jn re the General Adjudication of All Rights to Use

6

Water in the Gila River System and Source (“General

Adjudication”). After consolidation, the Superior Court

identified certain legal issues the court would resolve

before proceeding to its adjudication of individual claims.

See In the Matter of the Rights to the Use of the Gila River, 171

Ariz. 230, 233, 830 P.2d 442, 445 (1992) (“Gila River I’).

In October of 1987, the trial court conducted five days of

hearings on the relationship between surface water and

groundwater. Following the hearings, a motion was filed to

exclude from the adjudication all wells pumping percolating

groundwater — leaving only those wells pumping surface flow

and subflow within the meaning of Southwest Cotton.

The trial court enunciated a test (the “50%/90 day rule’)

under which groundwater was considered to be subflow

if, during a period of 90 days of continuous pumping, the

stream depletion reached 50% or more of the amount of water

pumped. See Jn re the General Adjudication of All Rights to

Use Water in the Gila River System and Source, 175 Ariz. 382,

384-386, 857 P.2d 1236, 1238-1240 (1993) (“Gila River IT’’).

Six legal issues, arising out of the General Adjudication,

were accepted for Interlocutory Appeal by the Anzona Supreme

Court. One of the questions for review was: Did the trial court

err in adopting its 50%/90 day test for determining whether

underground water is “appropriable” under A.R.S. § 45-141?

See Interlocutory Issue 2, Jn re the General Adjudication of All

Rights to Use Water in the Gila River System and Source, 195

Ariz. 411, 414, 989 P.2d 739, 742 (1999) (“Gila River III’’).

While the court in Gila River II agreed that “subflow,” as

the term was used in Southwest Cotton, was appropriable water

and subject to the jurisdiction of the General Adjudication, it

also determined that the trial court’s 50%/90 day rule did not

meet the Southwest Cotton subflow criteria. The Arizena_ /

—s

=

7)

Supreme Court vacated the portion of the trial court’s order

that formulated the 50%/90 day rule — remanding the

matter to the trial judge to take evidence and, by applying the

principles contained in Gila River IT, determine criteria for

distinguishing appropriable subflow from percolating

groundwater. 175 Ariz. at 394, 857 P.2d at 1248.

Following remand, a trial was conducted to determine the

criteria for separating appropriable subflow from percolating

water. The Arizona Supreme Court reviewed the trial court’s

determination of fact and law, and concluded:

We affirm the trial court’s order after remand in all

respects. The subflow zone is defined as the

saturated floodplain Holocene alluvium. DWR, in

turn, will determine the specific parameters of that

zone in a particular area by evaluating ali of the

applicable and measurable criteria set forth in the

trial court’s order and any other relevant factors.

See §§ 33-35, supra. All wells located within the

lateral limits of the subflow zone are subject to this

adjudication. In addition, all wells located outside

the subflow zone that are pumping water from a

stream or its subflow, as determined by DWR’s

analysis of the well’s cone of depression, are

included in this adjudication. Finally, wells that,

though pumping subflow, have a de minimus effect

on the river system may be excluded from the

adjudication based on rational guidelines for such

an exclusion, as proposed by DWR and adopted by

the trial court.

In re the General Adjudication of All Rights to Use Water in

the Gila River System and Source, 198 Ariz. 330, 344, 9 P.3d

1069, 1083 (2000) (“Gila River IV").

8

ARGUMENT

THERE IS NO COMPELLING REASON TO GRANT

CERTIORARI. CERTIORARI SHOULD BE DENIED.

“Review on a writ of certicrari is not a matter of right, but

of judicial discretion. A petition for a writ of certiorari will be

granted only for compelling reasons.” Rule 10, Rules of the

Supreme Court of the United States. There are no compelling

reasons for the Court to grant this Petition.

I. THE ARIZONA SUPREME COURT DECISION, IN

GILA RIVER IV (THE OPINION BELOW), DOES

NOT CONFLICT WITH OR REVERSE PREVIOUS

DECISIONS OF THE ARIZONA SUPREME COURT.

Petitioners claim that “[t]he Opinion Below, by

unpredictably expanding the definition of subflow, takes

property from landowners who relied on the formerly narrow

definition when deciding where to locate and invest in wells.”

Petition, page 11. Petitioners are factually and legally incorrect.

In Gila River IV, the Arizona Supreme Court did not expand

the definition of subflow and did not take property from any

landowners.

A. The Decision Of The Arizona Supreme Court,

Concerning Subflow, Followed Established Arizona

Precedent And Was Not Sudden, Unpredictable,

Or Retroactive.

The lynchpin of Petitioners’ arguments is that the Arizona

Supreme Court’s criteria for determining whether underground

waters constitute subflow, as enunciated in Gila River IV,

“constitutes a sudden and unpredictable departure from all prior

judicial precedents.” Petition, page 13.

9

Since the 1931 Southwest Cotton decision, subflow has

legally been considered to be part of the surface stream and

subject to the doctrine of prior appropriation. The Arizona

Supreme Court recognized that it must determine “the extent

to which water pumped from wells must be treated as

appropriable under § 45-141 or, conversely, as groundwater

excluded from the legal rules applying to prior

appropriation.” Gila River II, 175 Ariz. at 386, 857 P.2d at

1240.

Throughout the various interlocutory appeals of the

General Adjudication, the Arizona Supreme Court has

consistently stated that it would only interpret the

requirements of Southwest Cotton, and that it was not going

to change or expand the definition of subflow. In Gila River

IV, the court discussed its decision in Gila River II, stating:

“In so holding, we reaffirmed the principles set forth in

Southwest Cotton, noting that our role was to interpret, not

to expand or in any way change, the holdings in that case.”

198 Ariz. at 335, 9 P.3d at 1074.

Petitioners argue that, in Gila River IV, the Arizona

Supreme Court failed to follow the same criteria for

determining subflow as were used in Southwest Cotton.

To support their contention, Petitioners pick and choose

selected words from Southwest Cotton and subsequent

decisions, and completely ignore the criteria for determining

subflow that were set out in Southwest Cotton and followed

in Gila River IV.

The underflow, subflow, or undercurrent, as it is

variously called, of a surface stream may be

defined as those waters which slowly find their

10

way through the sand and gravel constituting the

bed of the stream, or the lands under or

immediately adjacent to the stream, and are

themselves a part of the surface stream. 2 Kinney

on Irrigation (2d Ed.) par. 1161. ;

As the names given to this class of waters indicate,

physically they constitute a part of the surface

stream itself, and are simply incidental thereto,

and also in the main depend on the surface stream

to which they are incident for the greater part of

their water supply. The best test which can be

applied to determine whether underground waters

are as a matter of fact and law part of the stream

is that there cannot be any abstraction of the

water of the underflow without abstracting a

corresponding amount from the surface stream,

for the reason that the water from the surface

stream must necessarily fill the loose, porous

material of its bed to the point of complete

saturation before there can be any surface flow.

Southwest Cotton, 39 Ariz. at 96, 4 P.2d at 380.

The Southwest Cotton court explained some of the

evidentiary elements that could be used in determining

whether underground water was appropriable subflow or non-

appropriable percolating water — a series of wells or borings,

tunnels, the color and character of the water, the sound

of water passing underneath the earth, the interruption

of the flowing of other wells on the line of the alleged

subterranean stream, geologic formation, and others.

11

39 Ariz. at 87, 4 P.2d at 377. In Gila River IV, the Arizona

Supreme Court reiterated the Southwest Cotton criteria:

The court articulated the following test for

determining whether a well is pumping subflow:

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. . . .

198 Ariz. at 335, 9 P.3d at 1074.

The Gila River IV court then explained: “Although

‘subflow’ is a purely legal, not scientific, term, defining its

boundaries is not only difficult at best but also turns

ultimately on resolution of factual questions.” 198 Ariz. at

337, 9 P.3d at 1076. The Arizona Supreme Court noted that,

in Gila River II, it had rejected the trial court’s 50%/90 day

rule as arbitrary and set forth some of the evidentiary

elements that might be useful in determining, as a matter of

fact and law, what underground water constituted subflow.

These included “such characteristics as elevation, gradient,

and perhaps chemical makeup” of the surface stream

and underground water. 198 Ariz. at 341, 9 P.3d at 1080.

In addition, “[f]low direction can be an indicator. If the water

flows in the same general direction as the stream, it is more

likely related to the stream.” Gila River IJ, 175 Ariz. at 392,

857 P.2d at 1246.

After the remand from Gila River II, the trial court

conducted an extensive ten-day evidentiary hearing, during

which ten experts in the fields of geology and hydrology

12

testified. The court also spent two days traveling almost 600

miles in the San Pedro River basin. At each of the thirteen sites

visited, each expert was allowed to explain the geology and

hydrology of the site. Four months after the field trip, the

trial court held a two-day supplemental evidentiary hearing.

198 Ariz. at 336, 9 P.3d at 1075.

The Arizona Supreme Court noted that the trial court order

and findings of fact were comprehensive and detailed, being

sixty-six pages long, with thirty-six additional pages of exhibits.

The record included not only transcripts of the evidentiary

hearings, but also numerous reports, drawings, charts, and other

exhibits. Gila River IV, 198 Ariz. at 336, 9 P.3d at 1075.

The Gila River IV court observed that the trial court defined

“subflow” as the “saturated floodplain Holocene alluvium”

because “‘[t]he weight of the evidence’ pointed to

that geological unit ‘as the most credible “subflow” zone.’ ”

198 Ariz. at 334, 9 P.3d at 1073. The court found “that the

record reasonably supports that central finding as well as the

trial court’s related findings” and concluded that “the trial court’s

ruling is not invalidated by this court’s prior decisions relating

to subflow” and that “the ruling comports with hydrological

reality as it is currently understood.” 198 Ariz. at 334, 9 P.3d at

1073. For these reasons, the Anzona Supreme Court affirmed

the trial court’s order in its entirety.

Petitioners had argued to the trial court that the subflow

zone should be the post-1880 entrenchment (the channel

that the San Pedro River took following a major flood

in the 1880s). The trial court rejected this factual claim as

not being supported by the evidence; and both the trial

court and the Arizona Supreme Court noted that the post-

1880 entrenchment did not meet the criteria for subflow.

Gila River IV, 198 Ariz. at 339, 9 P.3d at 1078.

Lah ar RIT heath Sea RUSH TEA LN OMMEME Te When geen epee we S

M2 FCI HAMA EP by Ya PDN?

13

Having failed to convince the trial court and the Arizona

Supreme Court that their proposed post- 1880 entrenchment was

more appropriate as a subflow zone than the saturated floodplain

Holocene alluvium, Petitioners now attempt to argue that, in

Gila River IV, the Arizona Supreme Court failed to follow the

same criteria for determination of subflow as were used in

Southwest Cotton. The determination of whether underground

water constitutes subflow involves matters of fact and law.

See Southwest Cotton, 39 Ariz. at 96, 4 P.2d at 380; Gila River

11,175 Ariz. at 388, 857 P.2d at 1242; and Gila River IV, 198

Ariz. at 341, 9 P.3d at 1080. Petitioners merely disagree with

the factual determination made by the trial court, after a

ten-day hearing, and the legal determination of the Anzona

Supreme Court that the trial court properly applied unique

Arizona state law in its interpretation of the facts. Petitioners

are asking this Court to accept certiorari for the purpose of

deciding whether the Arizona Supreme Court correctly

interpreted its own court-created doctrine, and to decide whether

the facts presented in the evidentiary hearing more appropmniately

supported their claimed subflow zone than it did the subflow

zone established by the trial court and approved by the Anzona

Supreme Court.

Petitioners argue that subflow is a “narrow concept” and

then allege, without basis, that this “narrow concept” mandates

a narrow geographic expanse. A computer search, however,

reveals that the word “narrow” does not appear in the Suuthwest

Cotton decision, either in terms of the breadth of the subflow

doctrine or the possible geographic width of the subflow zone.

Indeed, the Southwest Cotton court relied heavily on Clesson

S. Kinney’s Treatise on the Law of Irrigation and Water Rights

(2d ed. 1912) which, at § 1161, pages 2106-2107, defined

subflow as “the broad and deep subterranean volume of water

which slowly flows through the sand and gravel underlying

14

most, if not all, of the streams which traverse the country

adjacent to the mountain systems of the arid region.” Gila River

IV, 198 Ariz. at 334, 9 P.3d at 1073.

The Anzona Supreme Court, in analyzing the trial court’s

50%/90 day rule, determined that this rule was too broad and

exceeded the criteria for subflow set out in Southwest Cotton.

In particular, the court rejected the rule’s emphasis on the

percentage of water depleted by pumping over a specified period

of time, rather than focusing on whether the water being pumped

tends to diminish appreciably and directly the flow of the surface

stream. Gila River IJ, 175 Ariz. at 393, 857 P.2d at 1247.

In addition, the court rejected the 50%/90 day rule because it

would identify the underground water of tributaries as subflow,

in violation of the Southwest Cotton definition of subflow.

Gila River II, 175 Ariz. at 392, 857 P.2d at 1246.

Thus, by rejecting the too-broad 50%/90 day rule

adopted by the trial court, the Arizona Supreme Court

reaffirmed “Southwest Cotton’s narrow concept of subflow”

in Gila River IJ. 175 Ariz. at 393, 857 P.2d at 1247.

In Gila River III, the Arizona Supreme Court again explained

that the “narrow concept” of subflow “turns on whether the

well is pumping water that is more closely associated with the

stream than with the surrounding alluvium.” Gila River IIT, 195

Ariz. at 416, 989 P.2d at 744 (citing Gila River II).

In Gila River IV, the Arizona Supreme Court specifically

considered and rejected Petitioners’ argument that the saturated

floodplain Holocene alluvium violated the “narrow concept”

of Southwest Cotton, as discussed only seven years earlier in

Gila River II. The court wrote:

As the groundwater users correctly observe, this

court “adopted [Kinney’s] narrow definition

15

{of subflow] in Southwest Cotton,” Gila River II,

175 Ariz. at 390, 858 P.2d at 1244, and again

characterized subflow as “a narrow concept” in

Gila River IJ. Id. at 391, 857 P.2d at 1245.

Although those abstract, general statements hold

true, we also observed in Gila River I] that

variations may affect where the line is drawn

between subflow and nonappropriable percolating

water, “depending on the volume of stream flow

and other variables.” /d. Thus, defining subflow

in any particular area is a relative endeavor, “not

an all-or-nothing proposition.” /d. And, although

“the line between surface and groundwater ...

is, to some extent, artificial and fluid,” id. at 392,

857 P.2d at 1246, our various descriptions of

subflow in Gila River II and Southwest Cotton

should not serve as a straitjacket that restricts us

from reaching in the direction of the facts and, so

far as possible under those decisions, conforming

to hydrological reality.

Gila River IV, 198 Ariz. at 340, 9 P.3d at 1079.

The Arizona Supreme Court also specifically rejected

Petitioners’ contention that a “narrow concept” would

necessitate a subflow zone of only a few feet.

The resolution of this case should not hinge on

the semantics used in either Gila River I] or

Southwest Cotton to generally describe subflow.

In short, those decisions were not intended to

establish hard and fast, artificial parameters for

subflow based solely on its geographic reach or

on some arbitrary distance from a streambed. .. .

16

Rather, as we stated in Gila River I, the

determination of whether a particular well is

pumping subflow depends on “whether the well

is pumping water that is more closely associated

with the stream than with the surrounding

alluvium,” 175 Ariz. at 392, 857 P.2d at 1246,

and whether “ ‘drawing off the subsurface water

tend[s] to diminish appreciably and directly the

flow of the surface stream.” ” /d. at 393, 857 P.2d

at 1247, quoting Southwest Cotton, 39 Ariz. at

97, 4 P.2d at 380. That determination, in turn,

necessitates a comparative evaluation of such

factors as “elevation, gradient, [flow direction, |

and perhaps chemical makeup.” Gila River II, 175

Ariz. at 392, 857 P.2d at 1246. [Emphasis added. ]

Gila River IV, 198 Ariz. at 341, 9 P.3d at 1080.

Petitioners argued before the Arizona Supreme Court,

in Gila River IV, that the “narrow concept” of subflow

mandated a subflow zone of only a few feet and that the

saturated floodplain Holocene alluvium did not, as a matter

of fact and law, fulfill the criteria of subflow. The Arizona

Supreme Court clearly and definitely told the Petitioners that

they were wrong, as a matter of fact and Arizona law.

Petitioners now argue to this Court that, in Gila River IV,

the Arizona Supreme Court misinterpreted unique Arizona

law and misapplied the facts. They request this Court to tell

the Arizona Supreme Court it incorrectly interpreted two of

its own decisions, Gila River I] and Southwest Cotton.

This Court-has repeatedly held that “it is a well- |

established principle of federalism that a state decision

resting on an adequate foundation of state substantive law is

17

immune from review in the federal courts.” Wainright v.

Sykes, 433 U.S. 72, 82, 97 S. Ct. 2497, 2503, 53 L. Ed. 2d

594 (1977). “Neither this Court nor any other federal tribunal

has any authority to place a construction on a state statute

different from the one rendered by the highest court of the

state.” Johnson v. Frankell, 520 U.S. 911, 916, 117 S. Ct.

1800, 1804, 138 L. Ed. 2d 108 (1997). The Arizona Supreme

Court has interpreted Arizona statutes as providing that

groundwater in the saturated floodplain Holocene alluvium

is presumptively subflow and subject to the jurisdiction

of a general adjudication of water rights. Such “state

interpretation is as though written into the ordinance itself.”

Poulos v. New Hampshire, 345 U.S. 395, 402, 73 S. Ct. 760,

765, 97 L. Ed. 1105 (1953).

In Gila River IV, the Arizona Supreme Court determined

that its decision involved the same definition of subflow as

the court had been using for the past seventy years. 198 Ariz.

at 334, 9 P.3d at 1073. The court specifically determined

that its Gila River IV decision was in accordance with the

legal principles set out in Gila River JJ (in 1993) and in

Southwest Cotton (in 1931). There clearly has been no change

in Arizona law, sudden or otherwise, and this Petition for

Writ of Certiorari should be denied.

B. No Rights, Vested Or Otherwise, Have Been

Taken From Petitioners.

The decision in Gila River 1V did not take any rights,

property or otherwise, from any water user in the State of

Arizona. Under Arizona law, water is either appropriable or

it is not. Surface water, and its corresponding underground

subflow, is appropriable. Percolating groundwater is not

appropriable. This has been the law in Arizona since 1931.

Gila River IV did not change this law. If underground water

is subflow, under both Southwest Cotton and Gila River ]V__

it is appropriable. If it is appropriable, its use is subject to

the jurisdiction of Arizona courts in general stream

adjudications. All Gila River IV did was to clarify criteria

by which the factual and legal determination of subflow can

be rendered.

The Arizona Supreme Court was quite aware that its

opinion was not altering any rights or changing the status of

any water. In Gila River IV, the court wrote:

[T]he trial court did not change existing law

concerning subflow or otherwise improperly

encroach on the state’s Groundwater Code, A.R.S.

§§ 45-401 through 45-704. Rather, the court

merely applied the criteria set forth in Gila River

IT to the evidence presented on remand. As SRP

correctly notes, the trial court’s order “addresses

only appropriable water and wells that pump such

water,” without “chang[ing] the legal status of

underground water that is not appropriable.”

Gila River IV, 198 Ariz. at 344, 9 P.3d at 1083.

Before Gila River IV, subflow was appropriable. After

Gila River IV, subflow was appropriable. The determination

whether particular underground water is subflow is a question

of fact, to be determined in accordance with the criteria set

out in Southwest Cotton, Gila River II, and Gila River IV.

Petitioners attempt to give the impression that, if a well is

determined to be pumping subflow, the well owner will be

prohibited from ever utilizing water from that well. This is

false. Gila River IV does not hold that parties may not use

19

subflow water. Rather, the decision holds that subflow is

_appropriable, and that its nature, extent, and relative priority

must be established in a general stream adjudication. Whether

water is surface water or subflow, it is part of the stream —

and any right to use it is based on the relative priority of the

use and the amount of water available.

Gila River IV did not take rights away from any water

user. All it did was confirm that those water users pumping

subflow were still active parties in the General Adjudication.

Il. THE ARIZONA SUPREME COURT HAS NOT

CHANGED LONG-STANDING ARIZONA LAW

CONCERNING PERCOLATING UNDERGROUND

WATER.

Just as the decision in Gila River IV did not change the

definition of subflow, and did not take any rights away from

any water user in Arizona, the decision did not change the

definition of percolating groundwater or change the legal

status of percolating groundwater.

Petitioners take exception to this language in Gila River

IV:

Moreover, because a well owner does not own

underground water, Zown of Chino Valley v. City

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.

198 Ariz. at 344, 9 P.3d at 1083. However, this language is

actually an accurate statement of long-standing Arizona

20

statutory and common law. In 1981, in Chino Valley II, the

Arizona Supreme Court unambiguously stated that, under

Arizona law, there was no right to ownership of groundwater.

The court considered previous Arizona decisions containing

statements indicating that the owner of the overlying land

owned the percolating groundwater under that land. The court

considered the issues, language, and decisions in Howard v.

Perrin and Southwest Cotton, and determined that any

statements concerning ownership of groundwater or

percolating groundwater were dicta and irrelevant to the

resolution of the issues in these cases. The court declared:

Dictum thrice repeated is still dictum. It is a

court’s statement on a question not necessarily

involved in the case and, hence, is without force

of adjudication. [Citation omitted.] It is not

controlling as precedent. [Citation omitted. ]

We therefore hold that the statement first

made in Howard vy. Perrin and reiterated under

circumstances where the exact nature of the

overlying owner’s rights to the water beneath his

property were not in question is not precedent for

the decision in this case. [Emphasis added. ]

Chino Valley IT, 131 Ariz. at 81, 638 P.2d at 1327.

In Chino Valley II, appellants claimed that the Arizona

Groundwater Management Act denied them due process of

law and just compensation. The question, the Arizona

Supreme Court determined, was: “[W ]Jhat are a landowner’s

rights in the water percolating under his lands?” 131 Ariz.

at 82, 638 P.2d at 1328. The court answered: “In the absolute

sense, there can be no ownership in seeping and percolating

waters until they are reduced to actual possession and control

21

by the person claiming them because of their migratory

character. Like wild animals free to roam as they please,

they are the property of no one.” 131 Ariz. at 82, 638 P.2d at

1328. The court held that “there is no right of ownership of

groundwater in Arizona prior to its capture and withdrawal

from the common supply and that the right of the owner of

the overlying land is simply to the usufruct of the water.”

131 Ariz. at 82, 638 P.2d at 1328. The decision was appealed

to this Court, where it was “dismissed for want of a

substantial federal question.” Town of Chino Valley v. City

of Prescott, 457 U.S. 1101, 102 S. Ct. 2897, 2898, 73 L. Ed.

2d 1310 (1982).

Arizona appellate courts have, over the last twenty years,

consistently and unequivocally held that one does not own

groundwater in Arizona. In Arizona Public Service Company

v. Long, 160 Ariz. 429, 436, 773 P.2d 988, 995 (1989), the

Arizona Supreme Court stated: “One does not own water in

Arizona. One only has the right to put it to beneficial use.

This applies to both surface water [citation omitted] and

groundwater [citation omitted].” See also Arizona Water

Company v. City of Bisbee, 172 Ariz. 176, 179, 836 P.2d

389, 392 (App. 1992). |

The Arizona Supreme Court examined the issue of

ownership of percolating groundwater in Gila River J.

Therein, the court declared that, under Arizona law, there is

no ownership of water, surface or underground, and that

water rights are based on current beneficial use - with no

party having a right to future potential water use. The court

stated:

Arizona law recognized no right to reserve water

for some potential future use. See John D. Leshy

22

& James Belanger, Arizona Law Where Ground

and Surface Water Meet, 20 Ariz. St. L.J. 657,

698 (1988). Those wishing to contest that general

principle were not asserting a right to property;

Arizona law recognized no such property right.

See id.; Town of Chino Valley v. City of Prescott,

131 Ariz. 78, 82, 638 P.2d 1324, 1328 (1981).

* * * Having no legally recognized property right

in potential, future groundwater use, they have

no due process rights of which they can be

deprived by the summons or the instructions

which accompanied it.

171 Ariz. at 239, 830 P.2d at 451.

Federal courts have acknowledged that, under Arizona

law, there are no property rights to percolating groundwater.

In Cherry v. Steiner, 543 F. Supp. 1270 (1982) (“Cherry I’),

the District Court considered whether the Arizona

Groundwater Management Act violated the Fifth and

Fourteenth Amendments. After observing that federal courts

look to state law for the definition of property rights, the

- District Court wrote: “The only interpretation of Arizona

law open to this Court is that a landowner has no interest in

underlying groundwater prior to its capture. Without an

interest in the percolating water, the plaintiffs may not assert

a wrongful taking of their property; Chino Valley Il

emasculates their due process argument.” 543 F. Supp. at

1277.

For almost twenty years, groundwater users have been

claiming that the inability to own percolating groundwater

is an unpredictable change in Arizona law, giving rise to a

federal question as to whether property has been

23

impermissibly taken without due process. However, in

Cherry /, the District Court recognized that Chino Valley Il

did not constitute an unpredictable or sudden change in

Arizona law concerning ownership of percolating water. 543

F. Supp. at 1277-1278. The Ninth Circuit upheld the District

Court’s decision, agreeing that the determination, that there

was no ownership of percolating groundwater under Arizona

law, “was not a ‘startling’ and ‘unpredictable’ change in

Arizona property law, if it represents any change at all.”

Cherry v. Steiner, 716 F.2d 687, 692 (1983) (“Cherry IT’).

A statement of law that did not constitute a sudden or

unpredictable change in 1982 could hardly be a sudden or

unpredictable change in 2000. Thus, Gila River JV did not

represent a sudden or unpredictable change in Anzona law

concerning either subflow or percolating water.

iil. THE LANGUAGE, IN GILA RIVER IV,

PERTAINING TO PERCOLATING WATER IS

DICTUM AND NOT SUBJECT TO REVIEW BY

THIS COURT.

Petitioners complain about the language in Gila River

IV stating that “landowners have ‘no legally recognized

property right in potential, future groundwater use.’ ”

198 Ariz. at 344, 9 P.3d at 1083. While that language is a

correct, long-standing statement of Arizona water law, it is

also dictum in Gila River /V. Dictum “is a court’s statement

on a question not necessarily involved in the case and, hence,

is without force of adjudication. [Citation omitted.] It is not

controlling as precedent.” Chino Valley //, 131 Ariz. at 81,

638 P.2d at 1327.

The General Adjudication only has jurisdiction to

determine the nature, extent, and priority of water uses that

24

are subject to prior appropriation. Percolating groundwater

is not subject to prior appropriation, and percolating water

uses cannot be affected in the General Adjudication.

Thus, any language in Gila River /V dealing with percolating

water is not necessary to the decision. The United States

Supreme Court should not accept certiorari for the purpose

of reviewing dictum of a state supreme court.

IV. THE DECISION OF THE ARIZONA SUPREME

COURT DID NOT CONSTITUTE A TAKING OF

PROPERTY WITHOUT COMPENSATION IN

VIOLATION OF THE FIFTH AMENDMENT.

Gila River IV did not represent a change in the seventy-

year-old doctrine of subflow; nor did it represent a change

in the twenty-year-old determination that there are no

ownership rights to percolating groundwater. However, even

if Gila River lV had constituted a sudden and unpredictable

change in the law, a decision by a state supreme court to

revise or update state common law would not constitute a

taking of private property under the Fifth Amendment.

A. Petitioners Have No Property To Be Taken.

Petitioners allege that Gila River IV violates the Fifth

Amendment by taking private property for public use,

without compensation. Basic to any claim for compensation

under the Fifth Amendment is ownership of the property that

is allegedly taken. “Property interests . . . are not created by

the Constitution. Rather, they are created and their

dimensions are defined by existing rules or understandings

that stem from an independent source, such as state law. .. .”

Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S.

155, 161, 101 S. Ct. 446, 451, 66 L. Ed. 2d 358 (1980). Under

25

Arizona law, no party owns water, surface or underground.

Chino Valley IT, Arizona Public Service Company v. Long;

Arizona Water Company v. City of Bisbee; and Gila River I.

Since the Petitioners do not have property that can be taken,

there can be no violation of the Fifth Amendment.

B. Changing The Interpretation Of State Common

Law Does Not Constitute A Taking Of Property

In Violation Of The Fifth Amendment.

Petitioners do not cite a single case, from any state or ,

federal court, holding that a state supreme court’s altering

its interpretation of state common law constituted a taking

of property, without compensation, in violation of the Fifth

Amendment to the United States Constitution. A supreme

court, whether this Court or a state supreme court, must retain

the flexibility to make changes in its common law.

The Arizona Supreme Court has long recognized its

ability and obligation to adjust its common law when

necessity arises. In Southwest Cotton, the court observed:

It is true that the common law is not 1n its nature

and character an absolute, fixed, and inflexible

system; it is rather a system of general juridical

truths, founded on reason, natural justice, and

enlightened public policy, which are conditionally

explained with the progress of society, and which

adapt themselves to the gradual changes of that

society and the conditions, exigencies, and usages

of the country. It is never entirely stationary, but

is modified and extended by analogous

construction and custom so as to embrace new

relations springing up from time to time from an

26

amelioration or change of society, or different

physical conditions arising in the countries to

which it is to be applied. Should it ever become

so crystallized that its expressions must take the

same form, irrespective of physical, social, or

other conditions, peculiar to the locality or the

character and habits of the people, it would cease

to be the common law, and become a rigid and

arbitrary code.

39 Ariz. at 81-82, 4 P.2d at 375. Thus, the very decision that

created the subflow doctrine gave warning that common law

could change, if change was needed.

This Court has also recognized that courts must be free

to change common law. “The rule of stare decisis, though

one tending to consistency and uniformity of decision, is

not inflexible. Whether it shall be followed or departed from

is a question entirely within the discretion of the court, which

is again called upon to consider a question once decided.”

Hertz v. Woodman, 218 U.S. 205, 212, 30 S. Ct. 621, 622,

54 L. Ed. 101 (1910). In his dissenting and concurring

opinion in Baldwin v. New York, 399 U.S. 117, 128, 90

S. Ct. 1914, 1920, 26 L. Ed. 2d 446 (1970), Justice Harlan

explained:

Woodenly applied, however, [stare decisis] builds

a stockade of precedent that confines the law by

rules, ill-conceived when promulgated, or if sound

in origin, unadaptable to present circumstances.

No precedent is sacrosanct and one should not

hesitate to vote to overturn this Court's previous

holdings — old or recent — or reconsidered

settled dicta where the principles announced prove

27

either practically [citations omitted] or

jurisprudentially [cited omitted] unworkable, or -

no longer suited to contemporary life [citation

omitted].

Pervasive changes in states’ water laws have taken place

over the last century, without creating any Fifth Amendment

taking. In rejecting claims that a taking occurred because of

the adoption of the Arizona Groundwater Management Act,

the Arizona Supreme Court observed:

Legislatures of various states have from time to

time abolished the prevailing uses of groundwater

and substituted other plans for its use. State courts

have uniformly rejected the idea that groundwater

percolating through the soil may not be limited

and regulated and must be acquired by eminent

domain. Village of Tequesta v. Jupiter Inlet Corp.,

371 So.2d 663 (Fla.), cert. denied, 444 U.S. 965,

100 S.Ct. 453, 62 L.Ed.2d 377 (1979); Williams

v. Wichita, 190 Kan. 317, 340-41, 374 P.2d 578,

595-96 (1962), cert. denied, 375 U.S. 7, 84 S.Ct.

46, 11 L.Ed.2d 38 (1963); Crookston Cattle Co.

v. Minnesota Department of Natural Resources,

300 N.W.2d 769, 774 (Minn.1980); Baeth v.

Hoisveen, 157 N.W.2d 728, 733 (N.D.1968);

Knight v. Grimes, 80 S.D. 517, 523-27, 127

N.W.2d 708, 711-14 (1964).

Chino Valley 1, 131 Ariz. at 83-84, 638 P.2d at 1329-1330.

A state supreme court's revision, or even reversal, of

state common law does not constitute a taking of property

without compensation, in violation of the Fifth Amendment.

28

CONCLUSION

There are no compelling reasons that would justify

granting the Petition for Writ of Certiorari herein. Therefore,

the Gila River Indian Community respectfully requests that

the Court deny this Petition.

Respectfully submitted,

Ropney B. Lewis

Counsel of Record

STEVEN J. W. HEELEY

JoHN T. HESTAND

James D. Hitt

RuTH E. Koester

TimoTny L. PIERSON

Attorneys for Respondent

Gila River Indian Community

5002 North Maricopa Road

Box 5090

Chandler, Arizona 85226

(520) 796-1344