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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2001
- **Citation:** 533 U.S. 941

## Text

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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_ /

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=

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0969%3A6. Public record. Not legal advice.