Opposition Brief — San Carlos Apache Tribe v. Arizona (No. 06-173)

Supreme Court, U.S.

FILED

é (dD DEC - 8 2006

Nos. 06-173 and 06-33 QEEICE OF INE CLERK

In the Supreme Court of the Gnited States

SAN CARLOS APACHE TRIBE, PETITIONER

Vv.

STATE OF ARIZONA, ET AL.

PHELPS DODGE CORPORATION,

CONDITIONAL CROSS-PETITIONER

Vv.

SAN CARLOS APACHE TRIBE, ET AL.

ON PETITION AND CONDITIONAL CROSS-PETITION

FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF ARIZONA

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT

Solicitor General

Counsel of Record

SUE ELLEN WOOLDRIDGE

Assistant Attorney General

TODD S. AAGAARD

JOHN L. SMELTZER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

202) 514-2217

QUESTIONS PRESENTED

In a general stream adjudication, the Arizona Sup-

reme Court held that the San Carlos Apache Tribe and

the United States on the Tribe’s behalf are precluded,

under res judicata, from asserting rights to the Gila

River mainstem beyond those awarded in the 1935 Globe

Equity Decree, but that the Decree does not likewise

preclude claims to Gila River tributaries. The court also

held that the Tribe may not assert, in the state-court

general adjudication, a defense to res judicata based on

the United States’ alleged inadequate representation of

the Tribe in the Globe Equity proceedings, because any

collateral challenge to the Decree must be brought in

the federal court that entered the Decree.

The question presented in the Tribe’s petition in No.

06-173 is whether the Arizona Supreme Court erred in

declining to hear, on comity grounds, the Tribe’s res ju-

dicata defense.

The question presented in the conditional cross-

petition in No. 06-333 is whether the Arizona Supreme

Court erred in holding that the Globe Equity Decree is

limited to claims on the Gila River mainstem, as opposed

to its tributaries.

TABLE OF CONTENTS

Page

PONE 6 kas veconundutdvassscriersesonieenn 1

PE oo Fi 65:05 Cvevinteaeaiesesiscsse meee ]

US a'ias anv eVeeswebeadubedesnekss esr 2

SES 054 b05- 050 654 040s CENA See tia 8

CRD sav cabhakes Kénens oxeeus tis eeneeeaee 20

TABLE OF AUTHORITIES

Cases:

Arizona v. California, 460 U.S. 605 (1983) ....... 7, 14, 18

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

i SRP en etre rae: Ane re Te eee eh ee 4,5, 8, 11, 12, 14

Colorado River Water Conservation Dist. v. United

BEN, Se Wa ET Wo cnccesebeddasaswoneas 11

Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975) ....... 9, 10

Dodd v. Hood River County, 59 F.3d 852 (9th Cir.

ROEe cheesy ituswede sad bueboged cen vanes cae ewe an 16

Feller v. Brock, 802 F.2d 722 (4th Cir. 1986) ........... 13

Gila River Pima-Maricopa Indian Cmty. v. United

States, 684 F.2d 852 (Ct. Cl. 1982) ..........- 2 eens 2

Graver Tank & Mfg. Co. v. Linde Air Prods. Co.,

RS Ser ery ret rer rr rer 18

Heckman v. United States, 224 U.S. 413 (1912) ........ 14

International Union v. Karr, 994 F.2d 1426 (9th Cir.

BOGE onduks vasa 10404 0h ee ee ee ee 17

(IIT)

IV

Cases—Continued: Page

Lapin v. Shulton, Inc., 333 F.2d 169 (9th Cir.),

cert. denied, 379 U.S. 904 (1964) ........... ce eee 13

May v. Parker-Abbott Transfer & Storage, Inc.,

899 F.2d 1007 (10th Cir. 1990) ...... ccc eee cccveee 17

Nevada v. United States, 463 U.S. 110 (1983) .. 7, 14, 15, 18

Northern Cheyenne Tribe v. Adsit, 721 F.2d 1187 (9th

EE sr ckk ess ceawe de esharcwedeaeeees 5, 8, 12

Radio Station WOW v. Johnson, 326 U.S. 120 (1945) ... 10

Simmons v. New Pub. Sch. Dist. No. 8, 251 F.3d 1210

UU a ED ci Venda cued ye chusnaeeeseueiceecs 17

Treadaway v. Academy of Motion Picture Arts &

Scis., 783 F.2d 1418 (9th Cir. 1986) ............006: 13

Young-Henderson v. Spartanburg Area Mental

Health Ctr., 945 F.2d 770 (4th Cir. 1991) ........... 17

Statutes and rules:

McCarran Amendment, 43 U.S.C. 666 ..............-.. 5

Ohh as ME hh dn kv aee atndes success onan eades 9,10

A na ceccabscadaabebeee sos waekoeaetek am 16

ae ie OO oie eee 12

Miscellaneous:

H.B. 2276, 42d Legis., Ist Sess. (Ariz. 1995) ............ 6

Restatement (Second) of Judgments (1982) ... 7, 15, 16, 17

S. Rep. No. 133, 102d Cong., Ist Sess. (1991) ........... z

In the Supreme Court of the Gnited States

No. 06-173

SAN CARLOS APACHE TRIBE, PETITIONER

Vv.

STATE OF ARIZONA, ET AL.

No. 06-333

PHELPS DODGE CORPORATION,

CONDITIONAL CROSS-PETITIONER

Vv.

SAN CARLOS APACHE TRIBE, ET AL.

ON PETITION AND CONDITIONAL CROSS-PETITION

FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF ARIZONA

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

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

la-53a) is reported at 127 P.3d 882. The Arizona Su-

preme Court’s order denying reconsideration (Pet. App.

54a-61a) is reported at 134 P.3d 375.

JURISDICTION

The opinion of the Arizona Supreme Court was en-

tered on February 9, 2006. The Arizona Supreme Court

(1)

2

denied reconsideration on May 3, 2006 (Pet. App. 54a-

61a). A petition for a writ of certiorari was filed on Au-

gust 1, 2006. A conditional cross-petition for a writ of

certiorari was filed on September 5, 2006. The jurisdic-

tion of this Court is invoked under 28 U.3.C. 1257(a).

STATEMENT

1. The Gila River originates in the mountains of New

Mexico and flows west across Arizona, eventually meet-

ing the Colorado River (when flows are sufficient) at the

Arizona-California border. The most significant project

on the river is the San Carlos Federal Irrigation Pro-

ject, which includes the Coolidge Dam and San Carlos

Reservoir, a massive reservoir designed to store flood

waters for downstream irrigation. See generally Gila

River Pima-Maricopa Indian Cmty. v. United States,

684 F.2d 852, 859 (Ct. Cl. 1982). The United States con-

structed the Coolidge Dam and San Carlos Reservoir on

land within the San Carlos Apache Reservation. See ge-

nerally S. Rep. No. 133, 102d Cong., Ist Sess. 5 (1991).

In October 1925, the United States filed an action in

federal district court in Globe, Arizona (styled “Globe

Equity No. 59”) to secure water rights for the project

and associated Indian reservations. See OSM No. 293.’

The United States asserted various rights on behalf of

the Indians of the Gila River Indian Reservation, zd. at

4-6, the Indians of the San Carlos Apache Reservation,

id. at 6-7, and non-Indian owners of relevant lands, id.

at 7-19. The United States named as defendants the

Gila Valley Irrigation District and numerous canal com-

panies and individuals with claims to the “Gila River and

' The parties filed thousands of documents with the Office of the

Special Master (OSM). See Pet. App. 113a. Each document was as-

signed an “OSM No.” See id. at 117a n.6.

3

its tributaries in the District of Arizona and in the Dis-

trict of New Mexico.” Jd. at 3-4, 21-22.

The United States asserted that it “reserved and ap-

propriated” and was “entitled to use * * * for said San

Carlos irrigation project and * * * on said Indian Res-

ervations * * * all of the waters of the said Gila River

and its tributaries.” OSM No. 293, at 21. With respect

to petitioner, the San Carlos Apache Tribe, the com-

plaint stated that the Tribe had appropriated “waters of

the Gila River and its tributary * * * the San Carlos

river.” Jd. at 6-7. The United States prayed, inter alia,

for a “decree determin|ing] the relative rights of the

parties hereto * * * to and of the waters of the said

Gila River and its tributaries.” /d. at 23.

In 1927, the United States filed an amended com-

plaint narrowing the scope of the adjudication. See

OSM No. 346. The United States no longer asserted

claims to the “Gila River and its tributaries,” OSM No.

293, at 3-4, but instead asserted claims “in the waters of

the Gila River” alone. OSM No. 346, at 31. And while

the original complaint asserted the United States’ rights

against a class of defendants with claims to the Gila

River or its tributaries, the amended complaint asserted

the United States’ rights against a class of defendants

with claims to “the Gila River” alone, between various

points. Jd. at 32-33.

In amending its claims on behalf of the Apache Indi-

ans, the United States likewise withdrew claims to tribu-

taries. The amended complaint asserted that the Apa-

ches were entitled “to sufficient water for the irrigation

of the lands deemed necessary for them to irrigate from

the Gila river, excluding the San Carlos River.” OSM

No. 346, at 21; see zd. at 21-22.

4

The parties to Globe Equity No. 59 entered into a

consent decree (the Globe Equity Decree) in 1935. Pet.

App. Supp. 103-225; see OSM No. 4. The Decree recog-

nizes the dismissal, “without prejudice,” of numerous

parties determined to have “claims and rights, if any,

* * * outside the scope of [the adjudication] as outlined

and defined in the amended complaint.” Pet. App. Supp.

121; see OSM No. 4, at 9. Among the parties so dis-

missed without prejudice was conditional cross-peti-

tioner Phelps Dodge. /bid.; see OSM No. 469.

As among parties not dismissed, the Decree contains

a schedule of rights and priorities. Pet. Supp. App. 124-

198. Among other things, the Decree grants the United -

States the right to divert, from the Gila River, 210,000

acre feet per year to irrigate up to 35,000 acres of “irri-

gable Indian allotments” on the Gila River Indian Res-

ervation. The Decree also established the United

States’ right “to store the waters of the Gila River in the

San Carlos Reservoir” for the reclamation of approxi-

mately 100,000 acres of land below the reservoir. Jd. at

210, 217.

With respect to the Apache Indians, the Decree es-

tablished the United States’ right to divert 6000 acre

feet per year from the Gila River for the “reclamation

and irrigation” of 1000 acres of irrigable land. Pet.

Supp. App. 198. The Decree concludes by stating that

the parties are “forever enjoined and restrained from

asserting or claiming” against each other “any right,

title or interest in or to the waters of the Gila River”

except the rights specified in the Decree. /d. at 225.

2. In the mid-1970s, various water-rights claimants

filed actions in Arizona state court to resolve conflicting

claims. See Arizona v. San Carlos Apache Tribe, 463

U.S. 545, 557-558 (1983). Those proceedings evolved

5

into the present general stream adjudication to deter-

mine all rights in the Gila River system. Jbid. The

United States was joined as a defendant under the

McCarran Amendment, 43 U.S.C. 666. The United

States filed numerous claims on its own behalf and on

behalf of Indians on federal reservations. On behalf of

petitioner, the United States asserted rights to divert

water from the Gila River, the San Carlos River, and

various other waters. Pet. Supp. App. 82, 88-90. Peti-

tioner separately filed similar claims on its own behalf.

Id. at 42, 47-49.”

Before filing claims in the state-court general adjudi-

cation, petitioner and other Indian Tribes filed suit in

federal district court, seeking removal of the Indian wa-

ter claims to federal district court and an independent

determination of their claims in federal court. San Car-

los, 463 U.S. at 558. In 1983, this Court held that, in

deference to Arizona’s general stream adjudication, the

federal courts should abstain from adjudicating water

rights covered by the state-court adjudication. See zd.

at 569-570. On remand, the Ninth Circuit stayed the

federal-court actions brought by petitioner and other

Tribes. Northern Cheyenne Tribe v. Adsit, 721 F.2d

1187, 1189 (1983).

In 1990, petitioner intervened in the federal-court

Globe Equity proceedings, in which the court that en-

tered the consent decree in 1935 continues to interpret

and enforce the Decree. Pet. App. 44a, 46a. In doing so,

petitioner noted that it did not “seek to litigate rights to

additional Gila River water in this matter.” Jd. at 44a.

* In asserting rights to the Gila River mainstem, the United States

acknowledged that such claims were subject to a ruling on the preclu-

sive effect of the Globe Equity Decree. See Pet. Supp. App. 82; State-

ment of Claimant No. 39-64,259.

6

In 1995, the Arizona legislature requested that the

state-court Gila River litigation grant early consider-

ation to claims associated with Indian reservations and

other federal lands, in order to reduce the cost and com-

plexity of the adjudication. See H.B. 2276, 42d Legis.,

Ist Sess. § 24(C) (Ariz. 1995). In accord with that re-

quest, the trial court directed interested parties to file

summary judgment motions, as appropriate, raising pre-

clusion arguments concerning Indian claims. See Pet.

App. 112a-115a.

A special master determined that the Globe Equity

Decree should be accorded preclusive effect as to claims

asserted by or on behalf of the Gila River Indian Com-

munity, but that the Decree was limited in scope to the

Gila River mainstem, not its tributaries. Pet. App. 145a-

147a, 160a-164a, 179a. The trial court affirmed, id. at

90a, and held that its preclusion ruling applied to peti-

tioner to the same extent that it applied to the Gila Ri-

ver Indian Community, id. at 64a.

3. On interlocutory appeal, the Arizona Supreme

Court affirmed the determinations discussed above.

Pet. App. la-53a. The court noted that res judicata gen-

erally prevents re-litigation of the same cause of action,

and it assumed without deciding that whether two claims

are part of the same cause of action turns on whether

they comprise part of the same transaction. Jd. at 13a-

15a. Under that test, the court observed, “claims to the

Gila River mainstem asserted by the United States in

the Globe Equity litigation would not seem to be part of

the same ‘transaction’ as its claim to the tributaries,” in

part because the mainstem and tributaries are “spatially

distinct.” Jd. at 15a.

The Arizona Supreme Court rested its decision, how-

ever, on the different ground that “parties to a consent

7

decree can agree to limit the decree’s preclusive effects”

by agreeing “in terms or in effect” to that outcome. Pet.

App. 16a (quoting Restatement (Second) of Judgments

§ 26(1)(a) (1982) (Restatement)). The court concluded

that the parties to the Globe Equity Decree so agreed

because the Decree “adjudicated only claims to the Gila

River mainstem and not to its tributaries.” Jd. at 26a.

As support, the court explained that the United States’

amended complaint omitted the claims that its original

complaint had asserted to the tributaries; the United

States dismissed without prejudice all defendants who

claimed water solely from the tributaries; and the De-

cree itself grants rights only as to the Gila River, not the

tributaries. Jd. at 19a-23a.

The Arizona Supreme Court declined, however, to

address petitioner’s argument that it was not bound by

the Globe Equity Decree at all because the United

States allegedly represented petitioner inadequately in

the Globe Equity proceedings (to which petitioner was

not a named party). Pet. App. 36a-47a. While observing

that this Court “has twice rejected similar arguments in

fanalogous] cases,” 7d. at 39a (citing Nevada v. United

States, 463 U.S. 110, 135 (1983); Arizona v. California,

460 U.S. 605, 626, 628 n. 21 (1983)), the Arizona Supreme

Court determined that it need not decide whether this

case is “factually distinguishable” from those cases, be-

cause the “doctrine of comity compels” the court to “re-

frain from addressing the Tribe’s arguments,” id. at

AQa.

The Arizona Supreme Court reasoned that “a court

should not assume to disturb another court’s disposition

of a controversy unless there are good reasons for doing

so.” Pet. App. 42a (quoting Restatement § 78 cmt. a).

Because petitioner intervened in the Globe Equity pro-

8

ceedings for purposes other than challenging the United

States’ representation, the court found it clear that peti- —

tioner had “consciously declined to adjudicate its ‘inade-

quate representation’ claim in the forum responsible for

issuing, interpreting, and enforcing the Decree.” /d. at

44a. Under those circumstances, the Arizona Supreme

Court concluded, “[nJotions of comity would be seriously

undermined if [it} were to permit the Tribe to assert [in

the state court proceedings] the very arguments * * *

that it has explicitly pretermitted in the federal court.”

Ibid. In any event, the court opined, the federal court

likely “would not entertain an attack on the Decree

* * * because of untimeliness.” Jd. at 46a.

4, Ina motion for reconsideration, petitioner argued

that it had sought to litigate its water rights in federal

district court, but that those proceedings were stayed

(under abstention grounds) by the rulings of this Court

and the Ninth Circuit in San Carlos, supra, and Adsit,

supra. In denying rehearing, the Arizona Supreme

Court stated that the federal courts stayed only peti-

tioner’s independent federal-court action, not any post-

judgment proceedings in the Globe Equity litigation,

and thus did not deprive petitioner of the ability to seek

relief from the Decree in the latter proceeding. Pet.

App. 60a.

ARGUMENT

This Court’s review is not warranted. The Arizona

Supreme Court’s comity holding is wrong, but that hold-

in; does not conflict with decisions of other appellate

courts, and the issue is not likely to recur frequently.

Moreover, even if the comity holding were reversed,

petitioner could ultimately prevail on the inadequate-

representation issue it seeks to raise in these proceed-

9

ings only by establishing a valid defense to the res judi-

cata effect of the Globe Equity Decree, and petitioner

would have to overcome significant obstacles to do so.

With respect to the conditional cross-petition, the Ari-

zona Supreme Court’s interpretation of the Globe Eq-

uity Decree is correct and does not conflict with any

other appellate decisions.

1. Although the Arizona Supreme Court’s decision is

interlocutory. this Court has jurisdiction to consider the

petition under 28 U.S.C. 1257(a) because “the federal

issue, finally decided by the highest court in the State,

will survive and reauire decision regardless of the out-

come of future state-court proceedings.” Cow Broad.

Corp. v. Cohn, 420 U.S. 469, 480 (1975). The state su-

preme court conclusively determined that “the Globe

Equity Decree precludes the Apache Tribe and the

United States on the Tribe’s behalf from asserting

claims to water from the mainstem of the Gila River be-

yond those rights granted in the Decree,” and that, on

grounds of comity, it would not address the Tribe’s ar-

gument that the Decree should not be given preclusive

effect. Pet. App. 52a. Thus, while the state courts will

undertake further proceedings concerning other claims

to the relevant waters, the Arizona Supreme Court fi-

nally decided petitioner’s claims to the mainstem.

Moreover, a general stream adjudication is a para-

digmatic case for application of the Cox Broadcasting

rule quoted above, because a state court can spend de-

cades resolving thousands of different claims to water

rights along a particular water body. This case has been

pending for over two decades. See pp. 4-5, supra. It

would make little sense for this Court to defer review of

one claim or issue until all others are resolved, poten-

tially several decades later. That course could prejudice

10

all parties to the adjudication if this Court ultimately

upset decades of litigation by overturning an initial de-

termination.

Jurisdiction over the conditional cross-petition is a

closer question. While the Arizona Supreme Court fi-

nally determined that res judicata does not bar peti-

tioner’s claims to tributaries of the Gila River, see Pet.

App. 52a, further litigetion will be necessary to deter-

mine which, if any, of those claims are valid. Nonethe-

less, this Court his jurisdiction under 28 U.S.C. 1257(a)

over the narrow category of cases where “the federal

issue has been finally decided in the state courts with

further proceedings pending in which the party seeking

review here might prevail on the merits on nonfederal

grounds,” and “a refusal immediately to review the

state-court decision might seriously erode federal pol-

icy.” Cox, 420 U.S. at 482-483.

If this Court were to grant the petition, and were to

consider the conditional cross-petition worthy of its re-

view, it would make little sense to resolve only one of the

two res judicata issues at this time, and require the par-

ties and the state courts to undertake lengthy litigation

of the tributary claims before learning whether, in this

Court’s view, those claims are precluded by res judicata.

Especially because this Court would already be review-

ing this case at this time, and general stream adjudica-

tions can be exceptionally lengthy, “immediate rather

than delayed review would be the best way to avoid ‘the

mischief of economic waste and of delayed justice,’”

while also reducing the disruption to state proceed-

ings—if the petition and conditional cross-petition other-

wise warranted this Court’s review. Cox, 420 U.S. at

477-478 (quoting Radio Station WOW, Inc. v. Johnson,

326 U.S. 120, 124 (1945)).

1]

2. Under this Court’s demanding certiorari criteria,

however, the petition and cross-petition do not warrant

further review. Petitioner does not challenge the Ari-

zona Supreme Court’s ruling that the Globe Equity De-

cree adjudicated petitioner’s rights to water from the

Gila River mainstem. Rather, petitioner asks (Pet. 16-

30) this Court to review the Arizona Supreme Court’s

decision not to consider its inadequate-representation

defense to claim preclusion.

a. Petitioner correctly explains (Pet. 16-23) that the

Arizona Supreme Court erred in declining to consider

petitioner’s defense based on principles of comity. In

other contexts, a state court’s decision to defer to a fed-

eral court on the effect of the federal court’s prior judg-

ment might be appropriate, or at least not contrary to

federal law.

In this unusual context, however, this Court directed

the federal courts to abstain from adjudicating water

rights covered by the State’s general stream adjudica-

tion. See Arizona v. San Carlos Apache Tribe, 463 U.S.

545, 565-570 & n. 21 (1983). This Court explained that

“concurrent federal proceedings are likely to be duplica-

tive and wasteful, generating ‘additional litigation

through permitting inconsistent dispositions of prop-

erty.’” Id. at 567 (quoting Colorado River Water Con-

servation Dist. v. United States, 424 U.S. 800, 819

(1976)). In doing so, the Court emphasized that the Ari-

zona courts had a “solemn obligation to follow federal

law” in adjudicating petitioner’s water rights. Jd. at

571. As part of that adjudication, the Arizona courts

could properly resolve the question whether petitioner

has a valid federal-law ground for overcoming the res

judieata defense raised by other parties in this general

stream adjudication. It makes little sense for the state

12

courts to decline to consider an issue of federal law out

of comity to the federal courts when the federal courts

have already abstained in deference to the state

courts—especially when this Court has so directed and

emphasized the state courts’ obligation to follow federal

law.

Although the Arizona Supreme Court suggested that

Federal Rule of Civil Procedure 60(b) might prevent it

from reaching the inadequate-representation question,

the court correctly declined to rely on that ground. Pet.

App. 41a-42a. Rule 60 provides a mechanism for a party

to seek relief from a federal-court judgment by motion

in the original proceeding, but “does not limit the power

of a court to entertain an independent action to relieve

a party from a judgment.” Fed. R. Civ. P. 60(b). Here,

petitioner seeks to assert water rights in this “inde-

pendent action” by asserting affirmative claims to water,

and it is asserting an inadequate-representation ground

for overcoming the res judicata defense advanced by

other parties.

The Arizona Supreme Court noted that the federal

court that issued the Globe Equity Decree retained ju-

risdiction over the Decree, and petitioner intervened in

that action in 1990 for purposes other than challenging

the adequacy of the United States’ representation. Pet.

App. 44a. By that time, however, this Court had already

held, in 1983, that the federal courts should abstain from

adjudicating the water rights at issue in this Arizona

general stream adjudication, San Carlos, 463 U.S. at

569-570, and the Ninth Circuit had therefore stayed peti-

tioner’s independent federal-court action, Northern

Cheyenne Tribe v. Adsit, 721 F.2d 1187, 1189 (1983).

While petitioner was free to defend its existing rights

under the Globe Equity Decree in the court that entered

13

the Decree, this Court’s San Carlos decision permitted

petitioner to claim additional rights only in this state-

court litigation. The Arizona Supreme Court therefore

erred in holding that petitioner had voluntarily “de-

clined to adjudicate its ‘inadequate representation’

claim” in the Globe Equity court. Pet. App. 44a.

The cases cited by the Arizona Supreme Court are

not to the contrary. See Pet. App. 42a-43a. All of those

cases conditioned their comity holdings on the availabil-

ity of relief in an alternative forum. See Feller v. Brock,

802 F.2d 722, 728 (4th Cir. 1986); Treadaway v. Acad-

emy of Motion Picture Arts & Scis., 783 F.2d 1418, 1421

(9th Cir. 1986); Lapin v. Shulton, Inc., 333 F.2d 169, 172

(9th Cir.), cert. denied, 379 U.S. 904 (1964). Here, in

contrast, relief is not available to petitioner in federal

court under this Court’s San Carlos decision.

b. Nonetheless, this case does not warrant this

Court’s review. The Arizona Supreme Court’s decision

does not directly conflict with this Court’s decision in

San Carlos because the latter decision did not address

the question whether petitioner could request the fed-

eral court in the Globe Equity proceedings to determine

the effect of its own prier decree for purposes of decid-

ing whether petitioner then would be free under federal

law to seek additional water from the mainstem of the

Gila River in the state proceedings. Indeed, the San

Carlos Court had no oceasion to determine the signifi-

cance of petitioner’s subsequent limited intervention in

the Globe Equity proceedings seven years after this

Court decided San Carlos. Nor does petitioner contend

that the decision below is in conflict with any other deci-

sion of this Court or another appellate court.

The precedential significance of the Arizona Su-

preme Court’s decision is also limited. The issue ulti-

14

mately turns on this Court’s decision that the federal

courts should defer to Arizona’s general stream adjudi-

cation—a “virtually unique” context, as this Court noted

in San Carlos. 463 U.S. at 571,

c. The Arizona Supreme Court’s comity holding may

lack practical significance even in this case. Absent co-

mity, petitioner’s inadequate representation defense

would face substantial obstacles on its merits. At the

outset, the Arizona Supreme Court questioned the time-

liness of any attempt to assert inadequate representa-

tion concerning the Globe Equity Decree many years

after its entry in 1935. Pet. App. 45a-47a.

The Arizona Supreme Court also observed that this

Court, in analogous cases, has twice rejected res judi-

cata arguments similar to the argument made by peti-

tioner in this case. Pet. App. 39a-40a (citing Nevada v.

United States, 463 U.S. 110, 135 (1983); Arizona v. Cali-

fornia, 460 U.S. 605, 626, 628 n.21 (1983) (Arizona IJ)).

In Nevada, a Tribe sought to raise water rights claims

that the United States had not sought on the Tribe’s

behalf when negotiating a consent decree on behalf of

the Tribe and others. See 463 U.S. at 140. In holding

that res judicata barred such claims, this Court empha-

sized that “it could not, consistently with any principle,

be tolerated that, after the United States on behalf of its

wards had invoked the jurisdiction of its courts .. .

these wards should themselves be permitted to relitigate

the question.” /d. at 135 (quoting Heckman v. United

States, 224 U.S. 413 (1912)).

While petitioner argues (Pet. 23 n.32) that an inade-

quate-representation theory was not raised in Nevada,

this Court rejected a closely related argument that the

United States had labored under a conflict of interest

that in turn had led it to claim less water for the Tribe

15

than it should have in its capacity as a fiduciary. Ne-

vada, 463 U.S. at 127-128, 135-136 n.15. Moreover, peti-

tioner relies (Pet. 23 & n.31) on an exception to res judi-

cata that applies where “no justifiable reliance interest”

was created on the part of an opposing party because a

fiduciary colluded with the opposing party or the fidu-

ciary’s representation was “so grossly deficient as to be

apparent to the opposing party.” Restatement § 42 cmt.

f. There is a serious question whether that theory could

ever apply where, as here, the United States as sover-

eign settled a claim for Indian water rights. Even in

circumstances where reliance on a private party’s inade-

quate representation would be unjustifiable, reliance on

the United States’ sovereign actions presents a different

question. Cf. Nevada, 463 U.S. at 128, 135, 1386 n.15.

As a factual matter, moreover, the United States

does not believe that its representation was inadequate

in the Globe Equity proceedings in light of, inter alia,

the Decree’s limitation to the Gila River mainstem, the

limited amount of land on the San Carlos Apache Reser-

vation that could be readily irrigated from the main-

stem, and petitioner’s limited historical use of the main-

stem for irrigation. See, e.g., OSM No. 17817, at 44-45

(1915 report noting limited amount of Apache land in

irrigation along mainstem and that such fields would be

inundated by San Carlos reservior); OSM No. 200362, at

18-19 (noting that the Gila River within Apache territory

was “unsuitable for ‘ raditional Apache agriculture along

most of [its] course” due to topography, vegetation, and

1i00ding, and that the Apaches “located most of their

farms along permanent streams that fed into the * * *

Gila * * * River[{]”). Those facts would have been

known to the opposing parties at the time the Decree

was entered. On this basis as well, there is substantial

16

reason to question whether petitioner could prevail even

if this Court were to reverse the Arizona court’s comity

holding.

3. Even if this Court were to grant the principal pe-

tition, there would be no reason to grant the conditional

cross-petition, which raises (Cross-Pet. i) the factbound

question whether the Arizona Supreme Court erred by

interpreting the Globe Equity Decree to resolve only

claims to the Gila River itself, as opposed to that river’s

tributaries. Cross-petitioner argues (id. at 17) that

“(t]he Arizona Supreme Court misapplied the federal

law of claim preclusion.” Under this Court’s Rules, how-

ever, “[a] petition for a writ of certiorari is rarely gran-

ted when the asserted error consists of erroneous fac-

tual findings or the misapplication of a properly stated

rule of law.” Sup. Ct. R. 10. There is no reason for a

different result in this case, especially because the Ari-

zona Supreme Court’s decision is correct and does not

conflict with any other appellate decisions.

a. Cross-petitioner argues (Cross-Pet. 21) that fed-

eral law requires “an express and clear” reservation in

a consent decree for parties to “split” or reserve a claim.

The Restatement states, however, that preclusion does

not apply when “[t|he parties have agreed in terms or in

effect that [a] plaintiff may split [a] claim.” Restatement

§ 26(1)(a) (emphasis added). Thus, while an express and

clear reservation of rights in a consent decree is suffi-

cient to avoid res judicata, it is not invariably necessary.

See Pet. App. 17a-18a; Dodd v. Hood River County, 59

F.3d 852, 862 (9th Cir. 1995) (holding that “consent or

tacit agreement” can provide “justification for splitting

a claim”).

The cases cited by cross-petitioner (Cross-Pet. 22-24)

do not undermine that conclusion. Some of those cases

expressly recognize that a reservation need not be ex-

press. See Simmons v. New Pub. Sch. Dist. No. 8, 251

F.3d 1210, 1214 (8th Cir. 2001) (quoting Restatement

§ 26(1)(a)); Young-Henderson v. Spartanburg Area

Mental Health Ctr., 945 F.2d 770, 774 (4th Cir. 1991).

Others rely, for example, on an agreement’s “absolute[]

silen[ce].” May v. Parker-Abbott Transfer & Storage,

Inc., 899 F.2d 1007, 1010 (10th Cir. 1990); see /nterna-

tional Union v. Karr, 994 F.2d 1426, 1432 (9th Cir.

1993).

Here, in contrast, the Arizona Supreme Court ex-

plained that the Globe Equity Decree grants rights only

as to the Gila River, not the tributaries; the United

States’ amended complaint dropped the claims in its

original complaint concerning the tributaries; and the

Decree acknowledges the United States’ dismissal with-

out prejudice of all defendants who had claimed water

solely from the tributaries, making it quite clear that

such claims were not resolved in the Globe Equity case.

Pet. App. 19a-23a. Thus, even if a reservation had to be

made in the decree, the Arizona Supreme Court prop-

erly rested its decision on the terms of the Decree, as

informed by the litigation that preceded it. See zbid.

Cross-petitioner cites no analogous cases.”

' Even ifthe parties had not intended to reserve the tributary claims,

res judicata would apply only if the mainstem and tributary claims

formed part of the same cause of action or transaction. See Pet. App.

[2a-14a. Although the Arizona Supreme Court did not fully resolve that

question, it recognized that “claims to the Gila River mainstem asserted

by the United States in the Globe Equity litigation would not seem to

be part of the same ‘transaction’ as its claim to the tributaries,” in part

because the mainstem and tributaries are “spatially distinct.” /d. at

lda.

18

b. Cross-petitioner errs in asserting (Cross-Pet. 2,

18-19) that the Arizona Supreme Court’s decision is in

conflict with this Court’s decisions in Nevada and Ari-

zona II. In both cases, this Court held that the United

States could not assert claims for the benefit of Indian

reservations because decrees in prior proceedings pur-

ported—unlike the decree at issue here—to resolve all

such claims.

The Nevada Court explained that “the only conclu-

sion allowed by the record * * * is that the Govern-

ment was given an opportunity to litigate the Reserva-

tion’s entire water rights to the [river], and that the

Government intended to take advantage of that opportu-

nity.” 463 U.S. at 131 (emphasis added); see id. at 131-

134 (surveying the record). In Arizona //, an original

case before this Court, the special master likewise de-

termined that “[t|he claim in the [earlier] case . . . em-

braced the totality of water rights for the Reservation

lands.” 460 U.S. at 615 (citation omitted). Here, in con-

trast, the Arizona Supreme Court found, based on its

careful consideration of the record, that the parties did

not intend to resolve tributary claims in the Globe Eq-

uity proceedings. Pet. App. 19a-25a. That fact-bound

decision is fully consistent with this Court’s fact-bound

decisions in Nevada and Arizona I].

ce. The Arizona courts’ analysis of the record, on

which both the trial court and the state supreme court

agreed, does not warrant this Court’s review. See Gra-

ver Tank & Mfg. Co. v. Linde Air Prods. Co., 336 U.S.

271, 275 (1949). In any event, that analysis is correct.

While conceding (Cross-Pet. 7) that “the United

States limited the geographic scope of the Globe Equity

litigation,” cross-petitioner argues (id. at 8) that the

amended complaint brought “the tributaries within the

19

litigation’s geographic scope.” In defining the relevant

river segment, the amended complaint refers to a seg-

ment of “the Gila River * * * after the following tribu-

taries of the Gila River, the San Francisco River, and

the San Carlos River, the San Pedro River, and the

Santa Crus River, respectively, have joined, the main

stream.” Cross-Pet. App. 74. That language merely

defines the portion of the mainstem at issue, without in

any way demonstrating an intent to include tributary

claims (or rights to divert from tributaries) in the adju-

dication. See Pet. App. 20a.

While cross-petitioner observes (Cross-Pet. 7) that

the amended complaint “named additional parties,” in-

cluding cross-petitioner, “who diverted water only off

the tributaries,” those parties were dismissed from the

adjudication, without prejudice, because their claims

were “outside the territorial scope” of the suit and had

been included “through inadvertence and mistake”—a

point cross-petitioner ultimately acknowledges. /d. at

10. Such dismissals were expressly recognized in the

Decree. Pet. Supp. App. 120-121.

Although the amended complaint’s prayer for relief

contained a request that the Court “determine the rights

of the parties hereto to the waters of [the Gila River]

and its tributaries” (Cross-Pet. App. 75), the Arizona

Supreme Court correctly explained that this request

must be read in conjunction with the amended com-

plaint’s request for a determination of the rights of the

parties “to divert water from said river within the area

aforesaid,” 7.e., the defined segment of the Gila River

mainstem, ibid. (emphasis added); see Pet. App. 20a-

21a. While some water in the relevant portion of the

Gila River came from tributaries, the amended com-

20

plaint sought adjudication only of rights to water in the

river, not in the tributaries. See id. at 19a-21a.

Cross-petitioner also argues (Cross-Pet. 24) that the

United States “had no reason to exclude the San Carlos

River” from its claims if tributary claims were not other-

wise included in the claims of the amended complaint.

That ignores the fact that the United States expressly

claimed appropriations from the San Carlos River on

behalf of petitioner in its original complaint. Cross-Pet.

App. 10. The exclusion of the San Carlos River in the

amended complaint served only to narrow an express

request in the original complaint, not to indicate the

breadth of the amended complaint with respect to other

tributary claims.

CONCLUSION

The petition and conditional cross-petition for a writ

of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

SUF ELLEN WOOLDRIDGE

Assistant Attorney General

TopD S. AAGAARD

JOHN L. SMELTZER

Attorneys

DECEMBER 2006