Opposition Brief — Phelps Dodge Dodge Corp. Corp. v. San Carlos Apache Apache Tribe (Nos. 06-333, 06-173)

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SRE Or THE CLERK

| SUPREME COURT, US.

In The

Supreme Court of the Anited States

PHELPS DODGE CORPORATION,

Conditional Cross-Petitioner,

vs.

SAN CARLOS APACHE TRIBE; STATE OF ARIZONA;

GILA RIVER INDIAN COMMUNITY; ASARCO LLC; SAN

CARLOS IRRIGATION AND DRAINAGE DISTRICT;

CITY OF SAFFORD; GILA VALLEY IRRIGATION

DISTRICT; FRANKLIN IRRIGATION DISTRICT; SALT

RIVER PROJECT; CITY OF GOODYEAR; BHP COPPER

INCORPORATED; and UNITED STATES OF AMERICA,

Cross-Respondents.

e _—

On Petition For Writ Of Certiorari

To The Arizona Supreme Couwst

GILA RIVER INDIAN COMMUNITY’S

BRIEF IN OPPOSITION

RODNEY B. LEWIS

Counsel of Record

JENNIFER K. GIFF

General Counsel

JOHN T. HESTAND

TIMOTHY L. PIERSON

RUTH E. KOESTER

Post Office Box 97

Sacaton, Arizona 85247

Telephone: (520) 562-9760

Attorneys for the Gila River

Indian Community

Ct ae ne a een

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Did the Arizona Supreme Court correctly determine that

the Globe Equity No. 59 Decree’ does not preclude the San

Carlos Apache Tribe from claiming the right to use water

from the tributaries of the mainstem of the Upper Gila

River because of res judicata?

* Consent Decree, United States v. Gila Valley Irrigation District

et al., June 29, 1935, Federal District Court in and for the District of

Arizona.

TABLE OF CONTENTS

| Page

SEPM DGPS BRMSEGEY 1 EOL? ccovesevevcesescesvescvocesconsesensevoseess i

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Ee BIE FAAS BETUIEGE FLERE coccoveesesvevcevevecovecesoueeveveveeseess iv

RES 1 8): Ec vili

eS 9s: 1

I. THE GLOBE EQUITY NO. 59 DECREE .......... 1

A. HISTORY OF WATER RIGHTS LITIGA-

eo 0 2S 0.8.) 1

B. THE UNITED STATES’ PURPOSE FOR

INITIATING THE GLOBE EQUITY LITI-

TIE adiliccubs puincsssinnsnwiveinbontecsoouetieeneien 2

C. THE COMPLAINT AND AMENDED

TT oi i ciissncinienosepsiehewesonlivneneaituenden 3

D. PRE-DECREE PROCEDUREG.................. 5

E. GLOBE EQUITY NO. 59 DECREE PRO-

TE Ais nidchirseenichivwniecesiversestveiieloieene 7

F. THE GEOGRAPHIC SCOPE OF THE

GLOBE EQUITY NO. 59 DECREE. ............ 11

BL THE ORR DITCH DECREE ......0cesceverevrecessossevee 11

A. PRE-DECREE PROCEDUREGS................... 11

B. ORR DITCH DECREE PROVISIONG........ 13

C. THE GEOGRAPHIC SCOPE OF THE

EPR MEE Gold BAMAANCIEED <ccxessecsevseonensvvevensceoses 14

lil. THE GENERAL ADJUDICATION OF ALL

| RIGHTS TO USE WATER IN THE GILA RIVER

i Ri 0, 14

If.

Il.

iii

TABLE OF CONTENTS -— Continued

Page

REASONS FOR DENYING THE CONDITIONAL

Ce IS ES TSUN cecnsibincisatiniacinuseabhianianievonabenivesainia

THERE IS NO COMPELLING REASON TO

CRIA PEE Cee AP IIMEEE viscseveinisestssstnnselanevectonnvaies

THE ARIZONA SUPREME COURT COR-

RECTLY DETERMINED THAT THE GLOBE

EQUITY NO. 59 DECREE DOES NOT BAR

THE SAN CARLOS APACHE TRIBE FROM

CLAIMING THE RIGHT TO USE WATER

FROM THE TRIBUTARIES OF THE MAIN-

STEM OF THE UPPER GILA RIVER BE-

CAUSE OF RES JUDICATA ...........ccscsseesseeseeees

THE ARIZONA SUPREME COURT COR-

RECTLY DETERMINED THAT THE WNE-

VADA V. UNITED STATES EXCEPTION TO

THE MUTUALITY REQUIREMENT OF RES

JUDICATA DOES NOT CAUSE THE GLOBE

EQUITY NO. 59 DECREE TO BAR THE

RIGHT OF THE SAN CARLOS APACHE

TRIBE TO USE WATER FROM THE TRIBU-

TARIES OF THE MAINSTEM OF THE UP-

PER GILA RIVER ................ ibeslereneivonepervinnanite

THE ARIZONA SUPREME COURT COR-

RECTLY DECIDED THAT THE UNITED

STATES PROPERLY SPLIT ITS WATER

RIGHTS CLAIMS TO THE MAINSTEM OF

THE UPPER GILA RIVER AND THE TRIBU-

TARIES TO THE MAINSTEM MADE ON BE-

HAL#* OF THE SAN CARLOS APACHE INDIAN

RESERVATION IN THE GLOBE EQUITY NO.

BF FAC INED esinisnsinininsn scuviancionacushnsiipiicihenimiinbiigianmninns

a REET winivinesnctsiosnideninmanheiesesaicambbitnnbeiiaeeneiietels

TABLE OF AUTHORITIES

Page

CASES

AFL-CIO, C.L.C. v. City of Cleveland, 478 U.S. 501,

106 S. Ct. 3063, 92 L. Ed. 2d 405 (1986) ...............e00000 18

Alaska Sport Fishing Association v. Exxon Corpora-

tion, 34 F.2d 769 (Oth Cir. 1994) ...........cccccccsecscrereereseeee 17

California v. Randtron, 284 F.3d 969 (9th Cir. 2002).....25, 27

Colorado River Water Conservation District ov.

United States, 424 U.S. 800, 96 S. Ct. 1236, 471

Bi EE © FFE Si ccaitccsacndohartinidddaduntiuebuiesunarbacicousnoieets 21

Cooter & Gell v. Hartmarx Corporation, 496 U.S.

384, 110 S. Ct. 2447, 110 L. Ed. 2d 359.0... ee cenee 28

Dugan v. Rank, 372 U.S. 609, 83 S. Ct. 999, 10

Sigs Ie ee NU ieiiclentsidlin: Sched netasiinschadicohepheincaibiutiinasionabii 22

Gall v. South Branch National Bank of South

Dakota, 783 F.2d 125 (8th Cir. 1986).........ccccccccssrccessees 19

Gilbert v. Board of Medical Examiners, 155 Ariz.

169, 745 P.2d 617 (App. 1987).....c.csssssssssesssessesseeseesee 17

Hughes v. United States, 342 U.S. 353, 72 S. Ct.

i ee Rac Re Ge itis bac sciiciceccinittceateaninceinnapas 19

In re The General Adjudication of All Rights to Use

Water in the Gila River System and Source, 212

Ariz. 64, 127 P.3d 882 (2006) ................. 19, 24, 25, 28, 29

Jet, Inc. v. Sewage Aeration _— 223 F.3d 1360

ee I iekbiiacdasicecssilunidciiabinepnlitidaiiess sacuceacenteiens 28

Keith v. Volpe, 118 F.3d 1386 (9th Cir. 1997).................04. 19

Kittias Reclamation District v. Sunnyside Valley

Irrigation District, 763 F.2d 1032 (1985)............:eeccecee 22

TABLE OF AUTHORITIES -— Continued

Page

Local Number 93, International Association of Fire-

fighters, AFL-CIO, C.L.C. v. City of Cleveland,

478 U.S. 501, 106 S. Ct. 3063, 92 L. Ed. 2d 405

CPR cidasiedahiskiisiuieccoraves hpi maenaaa 18

Lorain NAACP v. Lorain Board of Education, 979

Fe SE TE iiiikirsssericaccaiidesisiestimiadtieeisninwiadeees 18

Mann v. Haigh, 120 F.3d 34 (4th Cir. 1997)... eee 28

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

$09 F.2d 1007 (10th Cir. 1900).....cccssccscccssossccsecsceceas 25, 27

Morgan v. Udy, 58 Idaho 670, 79 P.2d 295 (1938)............ 20

Mpoyo v. Litton Electro-Optical Systems, 430 F.3d

Be ee oe SP iecidndatiea hanes 17

Nevada v. United States, 463 U.S. 110, 103 S. Ct.

BOS, TF Lis, Bate ee CO IDES ces tcctcesscstontstsiasertaseess passim

Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 ‘

CG: GD, Gb T Tee. Be SES IG TO) cececoresissccsrscvervisrssers 17

People of the State of California v. United States,

235 ee Ee Ce Finite ciccachcserstcsteosetilatiinionions 23

PFS v. Industrial Commission of atic 191 Ariz.

EG ee Oe UI, BOT) iissircesiccalosentenFeticntdntcedoaaneias 17

Rice v. Sioux City Memorial Park Cemetery, 349

U.S. 70, 75 S. Ct. 614, 99 L. Ed. 897 (1955) ...........000000 16

Richards v. Jefferson County, Alabama, 517 US.

793, 116S. Ct. 1761, 135 L. Ed. 2d 76 (1996)............... 17

Robinson v. American Car & Foundry Co., 135 F.

I CF atts sicsdenthccncdepecscrnceniiinch deitedctitabdiiaie 28

Santana v. City of Tulsa, 359 F.3d 1241 (10th Cir.

BD istesiccscdisin pilin dines cbeidecriviisemibeatianmaiebenincemsaniaa 28

TABLE OF AUTHORITIES - Continued

Page

Scoggin v. Schrunk, 522 F.2d 436 (9th Cir. 1975)............ 25

Simmons v. New Public School District No. 8, 251

ee Re I GE BI iccenissemrecnctecrcnssemsniovesentieneesh 25, 26

State of California v. Rank, 293 F.2d 340 (1961).............. 22

State of Washington Department of Ecology v. Grimes,

121 Wash. 2d 459, 852 P.2d 1044 (1993)... eee 22

United States v. District Court in and for Eagle

County, Colorado, 401 U.S. 520, $1 S. Ct. 998, 28

Ss TUE DE OEY ED csatinesitvciesccsittieirendnaeiipimaaacaaeasvininedss 14

United States v. Gila Valley Irrigation District, 454

F.2d 219 (Sth Cir. 1972)......ccccccc0se000s siisindaaiisuiaiedaslacibsbiavioseaine 18

United States v. Gila Valley Irrigation District, 31

ee ee CIE Gait PEP Pcie scusicecousnsenosansinpiieestuaisdancciitnn 18

United States v. Skokomish Indian Tribe, 764 F.2d

PR EEIIEE, SETI sécccisuscackisdomacnnsscaaanecemnmbibehdicalieeiii 25, 26

United States v. Ward Baking Co., 376 U.S. 327, 84

S. Ct. TES, 13 Le, Bid. Bd TES (1GSO)....ccccvevevovsevcesscesseeseves 18

STATUTORY PROVISIONS

FEDERAL

43 Stat. 475-76 San Carlos Project Act [Pub. L. No.

SE SE _— RBRESE SIN ReeneSnene SRna mes Pre SEN 2

Sk 5 oak ER SRERR DRE NEI Senn een aae ne muraneaR ee te melee ON 14

STATE

II ON. i iackscaniesticsrinscinnseneeeheomaseimneiniomsiceniicts 14

Poe 2” Rae ene a ome 15, 23

Vii

TABLE OF AUTHORITIES — Continued

Page

OTHER MATERIAL

Globe Equity No. 59 Decree Consent Decree, United

States v. Gila Valley Irrigation District et al.,

June 29, 1935, Federal District Court in and for

Se SITIO FR accievccncvteciasesnncectcninntctisnvnntainn passim

a ccittiineniccinticnstinsthceneinipenpnidinibaipindinainies passim

Truckee River Agreement ..............cccscseseessesseeeceeeeeceees 12, 13

United States v. Truckee-Carson Irrigation District,

U.S. District Court for the District of Nevada,

Findings of Fact, December 8, 1977 ................:ceeeeeeeeees 12

Appendix 1

Appendix 2

Appendix 3

Appendix 4

Appendix 5

Appendix 6

Appendix 7

Appendix 8

Appendix 9

Appendix 10

Appendix 11

Appendix 12

Appendix 13

Appendix 14

Vill

TABLE OF APPENDICES

Globe Equity 59 Decree .......ccccccsseesceeees App. 1

COP EDO BIOIP OG ccsisscantusieniziotserensouinns App. 55

Truckee River Agreement Sesihbtamedidi App. 130

Memorandum of May 24, 1934 from

G. A. Iverson to a Mr. Blair.............. App. 199

August 4, 1926 letter from John

Truesdell, Superintendent of Irrigation

to Mr. Edward Smith, Special Assis-

tant to the Attorney General............. App. 222

September 23, 1926 letter to Mr.

BIS DIG victccnseseccsrecvisnthertedennens App. 228

Letter of October 20, 1926 from Edward

Smith to the Attorney General............. App. 230

Brief of the United States submitted

in Globe Equity No. 59 on December

Motion to Dismiss Certain

SON ss sssisaincasidstahisiakenpnoninieniaies App. 241

June 27, 1932 Memorandum by

CF Be cccsccciccssstesaetecseioninnans App. 242

December 29, 1931 letter from John

Truesdell! to John Ross..............00000+ App. 255

March 26, 1934 Memorandum from

John Truesdell to the Commissioner

of Indian Affairs and the Solicitor of

the Interior Department.................. App. 258

March 30, 1935 Motion to Dismiss

Certain Defendants................::000000+ App. 270

March 30, 1935 Order Dismissing

Certain Defendants..............:c0:c00seeee App. 275

STATEMENT OF FACTS

I. THE GLOBE EQUITY NO. 59 DECREE

A. HISTORY OF WATER RIGHTS LITIGATION

IN ARIZONA

During the nineteenth century and through the

middle of the twentieth century, Arizona was a substan-

tially rural state. The lands in Arizona are largely arid or

semi-arid. Early Euro-American settlers wanted to use the

limited water supplies for irrigation, mining, and domestic

purposes. But, as Mark Twain observed, “Whisky is for

drinkin’, water is for fightin’.” Early water users in Arizona

did most of their fighting in a series of small, localized court

cases. These cases adjudicated the water rights of a limited

number of participants to the use of water from a limited

geographic stretch of the Gila River System.

Prior to 1974, with the initiation of what would

eventually become the General Adjudication of All Rights

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

water users and the courts had little ability and less

inclination to deal with complex, geographically expansive

water rights litigations. The following decrees and deci-

sions, involving small portions of the Gila River water-

shed, were entered by Arizona courts in multiple counties

prior to 1974: the Kent Decree, the Haggard Decree, the

Benson-Allison Decree, the Ling Decree, the Lockwood

Decree, the Doan Decree, the Jenkes Decree, the Shute

Decree, the San Pedro Decision, Clifford v. Larrieu, Hill v.

Lenerman, Gila Bend Reservoir & Irrigation Co. v. Peoria

Canal Co., Gila Land & Cattle Co. v. Gila Water Co.,

Arlington Canal Co. v. Simpson, Gillespie Land & Irriga-

tion Co. v. Simpson, Gila Land & Cattle Co. v. Gila Water

Co., Dyke v. Caldwell, Miller v. Douglas, Boquillas Land

and Cattle Company v. St. David Cooperative Comm. and

Dev. Association, Wolf v. Turner, Pyeatt v. Huachuca Queen

Mining Company, Salt River Valley Water Users Associa-

tion v. Lee, Lee and Lee, Clarkson and Clarkson v. Wilcox

and the Globe Equity No. 59 Decree.

vicmeuertepeamememmnagmmamme titiatadaeneetae trees hedaman

AA et eee ee a ee |

B. THE UNITED STATES’ PURPOSE FOR

INITIATING THE GLOBE EQUITY LITIGA-

TION

Prior to the arrival of Euro-Americans, the Akimel

O’odham (the River People) and the Peeposh (the People),

also known as the Pima and Maricopa Indians, had an

economic, political, and military confederation the aborigi-

nal territory of which included all of the lands and waters

in what is now central Arizona. The Pima and Maricopa

Indians were prosperous and healthy. Then Euro-

American latecomers moved upstream from the Pima-

Maricopa lands and diverted the waters of the Gila and

Salt Rivers away — often running the waters into the

desert rather than allowing the waters to flow back into

the riverbeds and make their way to the Pima-Maricopa

lands. The Pima and Maricopa Indians were reduced to

poverty, starvation, and endemic diabetes.

The Pima-Maricopa Confederation had allied with the

United States Army in the 1850s through 1880s to protect

Euro-American settlers from hostile Indian tribes. Despite

this loyalty, the United States failed to protect Pima-

Maricopa water rights. In 1924, the United State Congress

made an effort to partially remedy this serious wrong

through passage of the San Carlos Project Act [Pub. L. No.

68-210, 43 Stat. 475-76, June 7, 1924].° The Act authorized

the construction of Coolidge Dam and water delivery

systems to provide water to approximately 50,000 acres of

Pima land within the boundaries of the Gila River Indian

Reservation. The Act also authorized the participation of

certain non-Indians to the extent of 50,000 acres. These

non-Indian landowners are participants in the San Carlos

Irrigation and Drainage District (SCIDD). The United

* “This measure is primarily for the restoration to the Pima

Indians of their water rights along the Gila River, which have been

gradually taken away from them by the white settlers above them

appropriating the waters of the river.” Senate Report #129, 6th

Congress, Ist Session, Senate Committee on Indian Affairs, February 7,

1924.

States initiated the Globe Equity litigation in 1925 to

secure a reliable water supply for the 50,000 acres of Pima

land and 50,000 acres of non-Indian land within the San

Carlos Indian Irrigation Project (SCIIP).

C. THE COMPLAINT AND AMENDED COM-

PLAINT

The initial complaint in the Globe Equity litigation

was filed on October 2, 1925. The initial complaint did

seem to indicate an intent to seek to quantify the water

rights of the mainstem of the Upper Gila River and its

tributaries. On May 24, 1934, G. A. Iverson (Special

Assistant to the Attorney General) wrote a memorandum’

to a Mr. Blair explaining the situation that led to filing an

original complaint that was too broad. At page 2, he wrote:

The original] Bill of Complaint shows evidence of

having been prepared hastily and without proper

consideration either as to geographical areas or

with any purpose of descriminating [sic] between

rights of recognized standing and those appar-

ently in conflict with the interests of the Gov-

ernment.

Beginning in 1926, the federal government questioned

having the tributaries included in the Globe Equity litiga-

tion.’ On December 5, 1927, the United States filed an

amended complaint. See Appendix 2 of Phelps Dodge’s

Petition for Writ of Certiorari. At paragraphs 13(e) and (f)

and 14(a), (b) and (c) the amended complaint sought the

right to use “waters of the Gila River.” Paragraph 15 of the

amended complaint stated that each of the defendants

* Memorandum of May 24, 1934, from G. A. Iverson to Mr. Blair,

pages 1, 2, 3, 4 and 18 (Appendix 4)

* See August 4, 1926, letter from John Truesdell (Superintendent of

Irrigation) to Mr. Edward Smith (Special Assistant to the Attorney

General) (Appendix 5); September 23, 1926, letter to Mr. Edward Smith

(Appendix 6); Letter of October 20, 1926, from Edward Smith to the

Attorney General (Appendix 7)

[cjlaims some right to divert water from the Gila

River as it flows between a line 10 miles east of

the parallel to the dividing line between Arizona

and New Mexico, and the confluence of the Salt

River with the Gila River, and after the following

tributaries of the Gila River, the San Francisco

River, and the San Carlos River, the San Pedro

River, and the Santa Cruz River, respectively,

have joined, the main stream, and all but a few

of said diversions being in the District of Arizona;

or the said defendants claim some right to store

the water of said river, or of some tributary

thereof, either within or above the stretch of the

same as just described. [Emphasis added.]

Phelps Dodge Petition for Writ of Certiorari, Appendix 2.

On December 6, 1927, the day after filing the

amended complaint, the United States filed a brief’ to the

Globe Equity Court defining the limited nature and scope

of the adjudication:

This suit is one to adjudicate water rights within

a specified area of the Gila River. That area is de-

fined in the complaint and roughly embodies the

stretch of the river extending from the lower or

western end of the Gila River Indian Reserva-

tion, up that stream, to a line parallel with the

boundary between the States of Arizona and New

Mexico, but 10 miles east thereof. The idea is to

settle rights of diversion along this stretch of the

stream, excluding, however, rights to divert water

of the tributaries — the Salt, which flows into the

Gila on the western edge of the Gila River Reser-

vation; the Santa Cruz, which reaches the Gila

on the Reservation west of Florence; the San

Pedro, which comes into the Gila above the

Ashurst-Hayden diversion dam, some 10 miles

upstream from Florence; the San Carlos, ...

comes into the Gila on the north within the site

. the Coolidge reservoir; the San Francisco,

* Appendix 8

which joins ... also from the north above the

Solmonville-Safford ... below the Duncan Valley;

the San Simone [sic], which is an extremely

flashy wash stream and comes into the Gila from

the south below the Duncan Valley, and all parts

of the Gila River proper above the line mentioned

as being some 10 miles within the State of New

Mexico. [Emphasis added.]

D. PRE-DECREE PROCEDURES

Even before filing the amended complaint, which

clarified the limited geographic scope of the Globe Equity

litigation by excluding the tributaries, the United States

planned for and executed the dismissal of parties who only

diverted water from the tributaries of the mainstem of the

Upper Gila River On April 14, 1927, Edward Smith

(Special Assistant to the Attorney General) filed a motion

to dismiss certain defendants “without prejudice and

without cost ... for the reason that the said Bosquillas

Land and Cattle Company and the San Pedro Water Users’

Association are not necessary parties to the action.”

The attorneys for the United States kept working to

correct the problems that arose from the inadvertent

presence in the Globe Equity litigation of parties who only

diverted water from the tributaries and were, therefore,

outside the limited scope of the lawsuit. In 1932, Mr.

Morton (attorney for the United States) authored a memo-

randum in which he wrote:

It was conceived that the settlement, if effective

and adequate, would involve a definition and de-

termination of all existing rights in the Gila

River within the scope of the suit, and the elimi-

nation of all parties who did not belong in the

* Appendix 9

suit but happened to be there by reason of mis-

takes, inadvertencies or the like which occurred

before our advent. [Emphasis added.]'

On December 29, 1931, John Truesdell (an attorney

and engineer who worked on both the Globe Equity No. 59

Decree and the Orr Ditch Decree) wrote to the attorney for

Phelps Dodge Corporation and the Arizona Copper Com-

pany. He wrote:

The geographical limits of the suit were set on

the east with the idea that a line drawn from

north to south ten miles east of the boundary be-

tween New Mexico and Arizona and excluding

the tributaries, would include all of the diver-

sions from the stream which ought to be covered

by a suit of the sort the Government had in

mind. It was considered, when the suit was

brought, that diversions from the tributaries and

from the main stream above the point indicated

were not of such a character as to necessitate

their determination. It was thought also that

they might not have to be fixed or interfered with

at all; and that in all events their handling

should be left to the future.”

He continued:

Your clients and others who divert from the

tributaries or otherwise outside the area meant to

be covered by the suit, were made defendants

through inadvertence. It is our view, as we have

already explained in conversation, that from our

standpoint, and we think also from your own,

they should be dismissed from the suit, and of

course without prejudice. [Emphasis added.]’

On March 26, 1934, Mr. Truesdell drafted a memo-

randum for the Commissioner of Indian Affairs and the

" Appendix 10

* Appendix 11, page 1

* Appendix 11, pages 1 and 2

Solicitor of the Interior Department.” At page 1, he wrote:

“In trying to settle this suit through the entry of a consent

decree it may be necessary to ask the court to dispose of

the case, through dismissals without prejudice or by some

other means, as to certain parties who will not join in the

general consent.”

Beginning in late 1934, the United States requested

and the Court ordered that water users on all tributaries

to the mainstem of the Gila River be dismissed as being

“outside the scope of said suit.” All of the dismissals were

without prejudice." On March 30, 1935, Phelps Dodge

Corporation entered into a stipulation with the United

States, which was approved by the Court, whereby Phelps

Dodge was dismissed from the Globe Equity litigation,

without prejudice, because the Phelps Dodge interests

were “outside the territorial scope of the suit as it was and

is defined in the Amended Complaint” and because the

dismissed defendants were included in the action “through

inadvertence and mistake.” Globe Equity No. 59 Decree,

Article III, pages 8-9.

E. GLOBE EQUITY NO. 59 DECREE PROVI-

SIONS

The provisions and language of the Globe Equity No.

59 Decree (Appendix 1) explicitly established that the

Decree dealt only with quantifying the water rights of

specific parties, as against each other, to use water from

the mainstem of the Upper Gila River. The Globe Equity

No. 59 Decree unequivocally confirmed that it did not deal

with rights to use water from any of the tributaries to the

mainstem of the Upper Gila River; and that it did not, in

any way, grant or restrict the right of any party (whether

to the Decree or not) to use the waters of those tributaries.

’° Appendix 12

" March 30, 1935, Motion to Dismiss (Appendix 13), March 30,

1935, Order Dismissing Certain Defendants (Appendix 14)

The preamble to the Globe Equity No. 59 Decree

unambiguously affirmed that the Decree’s scope was

strictly limited to those parties whose claims were still

subject to determination, after all the dismissals without

prejudice had occurred.

That the plaintiff and the parties defendant

whose claims and rights have been presented by

answer or stipulation and remain for determina-

tion herein, have concluded and settled all issues

in this cause as between plaintiff and said par-

ties defendant, and as between said defendants

and each of them and every other thereof, and

mutually have agreed —- *** that such settle-

ment should be embodied in and confirmed and

made effective by way of the within decree of the

Court in this cause defining and adjudicating

their claims and rights as against each other in

identical form and substance as hereinafter set

forth:... -

The Globe Equity No. 59 Decree incorporated all or

part of four smaller, older, localized decrees with even

more limited geographic scope. The Lockwood Decree

quantified water rights for the non-Indian lands that

eventually became the San Carlos Irrigation and Drainage

District, which is a component part of the San Carlos

Indian Irrigation Project. Its table of rights and priorities

was incorporated into the Globe Equity No. 59 Decree. The

Doan and Jenkes Decrees quantified the water rights of

lands diverting from the mainstem of the Upper Gila River

above the San Carlos Apache Indian Reservation, and

their tables of rights and priorities were also integrated

into the Globe Equity No. 59 Decree.

The Ling Decree quantified the water rights of lands

diverting from both the mainstem of the Upper Gila River,

above the San Carlos Apache Indian Reservation, and

from tributaries of the mainstem of the Upper Gila River.

The portions of the tables of rights and priorities from the

Ling Decree that dealt with rights to divert from the

mainstem of the Upper Gila River were incorporated into

the Globe Equity No. 59 Decree. The portions of the tables

of rights and priorities dealing with rights to divert from

the tributaries were not included in the Globe Equity No.

59 Decree and must be enforced separately.

Articles I and III of the Globe Equity No. 59 Decree

contain extensive lists of tributary water users who were

dismissed from the litigation, without prejudice, including

Phelps Dodge Corporation.” The Globe Equity No. 59

“ «That by the orders of this Court dated January 22, 1929, and

March 11, 1930, this suit and the amended complaint herein, upon the

motion of plaintiff, were dismissed as to defendants:

[names omitted]

it having been found and determined by the Court in that relation that

they and each of them were not proper or necessary parties defendant in

this cause; which said action of the Court in these premises hereby

confirmed.” [Emphasis added.] Globe Equity No. 59 Decree, Article I,

page 6.

“That, upon the motion of the plaintiff, by Order of this Court dated

March 30, 1935, this suit and the amended complaint herein were

dismissed without prejudice as to the following defendants, to-wit:

Phelps Dodge Corporation, Arizona Copper Company;

lother names omitted].

Said action was had and taken in pursuance of those certain five

stipulations between the plaintiff and the defendants above named

through their solicitors of record, on file herein, wherein and wherefrom

it appeared that said defendants and each of them had been named in

this action and amended cemplaint, as parties defendant herein,

through and by inadvertence, mistake and error, and that their claims

and rights, if any, were aid are outside the scope of said suit as same

was and is outlined and; defined in the amended complaint herein, and

that they and each of them should be dismissed and eliminated from

said cause, although some of them had filed their answers setting up

their claims and rights to the use of certain waters from some of the

tributaries of the Gila River, and said answers were filed through

mistake and a misunderstanding as to the scope of said cause as

outlined and defined in plaintiff’s said amended complaint. Jt was

agreed in said stipulations that the dismissal of said defendants should

be accomplished upon motion of the plaintiff and Order of this Court as

aforesaid, and that said Order should provide as in fact it dees, as made

and entered, of record herein that: said action and dismissal should be

without prejudice to said defendants and each of them and/or to any of

the other parties in this cause, or to any claim or rights to the use of

water which said defendants, or any of them, or said other parties or

(Continued on following page)

Decree, as consented to by the parties and adopted by the

court, did not quantify a single water right to any tribu-

tary of the mainstem of the Upper Gila River. The Decree’s

schedule of rights and priorities lists only diversions from

the mainstem of the Upper Gila River. Article V of the

Globe Equity No. 59 Decree specifies “that the Gila River is

the stream from which the water called for under each of

said rights is and may be diverted.”

Article XIII makes it clear that the Decree does not

give rights or protections to non-parties to the Decree. The

parties to the Decree agreed that they would not use the

waters of the mainstem of the Gila River in a way that

interfered with the prior rights (as established in the

Decree) of other parties to the Decree.

That each and all of the parties to whom rights

to water are decreed in this cause (and the

persons, estates, interests and ownerships repre-

sented by such thereof as are sued in a representa-

tive capacity herein), their assigns and successors

in interest, servants, agents, attorneys and all per-

sons claiming by, through or under them and their

any of them, now or hereafter may have, against the other or others,

and that said defendants, and each of them, should be left as though

they never had been named or made parties defendant herein; which

said action heretofore taken by the Court in the premises, is hereby

confirmed, and the provisions herein recited in reference thereto are

made a part of this decree to protect their rights in that respect.”

{Emphasis added.] Globe Equity No. 59 Decree, Article Ill, pages 8-9.

“That, upon motion of the plaintiff, by Order of this Court dated March

30, 1935, this suit and the amended complaint were dismissed, without

prejudice, as to the following named defendants, to-wit:

{names omitted]

said action having been taken, because it appeared from said motion on

file herein and the records; that said defendants and each of them were

brought into the action by. inadvertence and mistake and each was and

is not a necessary party to this action, for the reason that they have no

interests or that they are outside the scope of the suit as defined in the

amended complaint herein. The action taken heretofore in these

premises is hereby confirmed.” [Emphasis added.} Globe Equity No. 59

Decree, Article III, page 10.

successors, are hereby forever enjoined and re-

strained from asserting or claiming — as against

any of the parties herein, their assigns or succes-

sors, or their rights as decreed herein — any

right, title or interest in or to the waters of the

Gila River, or any thereof, except the rights

specified, determined and allowed by this decree,

and each and all thereof are hereby perpetually

restrained and enjoined from diverting, taking or

interfering in any way with the waters of the

Gila River or any part thereof, so as in any man-

ner to prevent or interfere with the diversion, use

or enjoyment of said waters of the Gila River or

any part thereof, so as in any manner to prevent

or interfere with the diversion, use or enjoyment

of said waters by the owners of prior or superior

rights therein as defined and established by this

Decree;....

F. THE GEOGRAPHIC SCOPE OF THE GLOBE

EQUITY NO. 59 DECREE

The Globe Equity No. 59 Decree quantifies the rights

of owners of approximately 140,000 acres of land to divert

water from the mainstem of the Upper Gila River. It does

not quantify the right of any party to divert water from

any other source for use on any other land. The Gila River

System and Source encompasses approximately 57,580

square miles or 36,851,200 acres of land. The Globe Equity

No. 59 Decree quantifies the water rights of less than four-

tenths of one percent of the lands within the Gila River

System and Source. Put another way, the Globe Equity No.

59 Decree does not quantify the water rights of over

36,500,000 acres of land in the Gila River System and

Source.

II. THE ORR DITCH DECREE

A. PRE-DECREE PROCEDURES

On March 13, 1913, the United States commenced a

quite title action involving the waters of the Truckee River.

On July 25, 1914, the United States amended the original

complaint, adding new parties and expanding the com-

plaint to include the Truckee River “and its tributaries.””

“Orr Ditch was intended by all concerned lawyers, liti-

gants and judges, as a general all inclusive water adjudi-

cation suit which sought to adjudicate all rights and

claims in and to the waters of the Truckee River and its

tributaries.”

The Orr Ditch Decree was approved by the United

States District Court on September 8, 1944. Prior to entry

of the Orr Ditch Decree, many of the parties to the litiga-

tion entered into the Truckee River Agreement (Appendix

3) in anticipation of eventual entry of the Orr Ditch

Decree. That agreement stated:

WHEREAS, the parties hereto (other than the

Conservation District) are users and/or diverters

of water flowing from Lake Tahoe and/or in the

Truckee River and its tributaries in the State of

Nevada...

WHEREAS, it is necessary for the accomplish-

ment of the foregoing objects that additional fa-

cilities for the storage of the waters of the

Truckee River and its tributaries be constructed

WHEREAS, the United States heretofore filed a

suit ... for the purpose of obtaining an adjudica-

tion of the rights of uses in the State of Nevada

to the waters of the Truckee River and its tribu-

taries in the State of Nevada...

WHEREAS, the Conservation District was or-

ganized for the purpose (among others) of captur-

ing, storing and conserving water of the Truckee

River and its tributaries...

" Findings of Fact, U.S. District Court for the District of Nevada,

United States v. Truckee-Carson Irrigation District, December 8, 1977,

Fact 7

" Ibid., Fact 8

WHEREAS, the Power Company is the owner of

certain rights in and to waters of Lake Tahoe and

the Truckee River and its tributaries ...

WHEREAS, the parties of the fifth part, herein

or their predecessors in interest are defendants

in said Truckee River Adjudication Suit and are

owners of rights in and to waters of the Truckee

River and its tributaries .. .

WHEREAS, the carrying out of the provisions of

this agreement will assist in conserving the wa-

ters of said Lake and River and its tributaries .. .

[Emphasis added.] Truckee River Agreement, page 1.

B. ORR DITCH DECREE PROVISIONS

The Orr Ditch Decree (Appendix 2) was a comprehen-

sive water rights adjudication of the entire Truckee River

System and Source and involved all; or virtually all, of the

users of any water to the Truckee River or any of its

tributaries. It was in the nature of a general adjudication.

In its preamble, the Orr Ditch Decree adjudicated the

right “to divert and use, from the Truckee River and its

tributaries and from the streams, springs, drain and waste

water hereinafter mentioned.” [Emphasis added.] At page

12, in the Irrigation Rights Section, the Orr Ditch Decree

confirmed that the “parties ... have acquired rights of

appropriation in, and have diverted and appropriated from

the Truckee River and its tributaries.” [Emphasis added.]

At page 87, the Orr Ditch Decree contains an injunc-

tive provision prohibiting the parties and their successors

“from asserting or claiming any rights in or to the waters

of the Truckee River or its tributaries or tne waters of any

of the creeks or streams or other waters hereinbefore

mentioned.” [Emphasis added.] That provision reiterates

that “said parties ... and all persons claiming by through

or under them, are hereby perpetually restrained and

enjoined from diverting, taking or interfering in any way

with the waters of the Truckee River or its tributaries, or

with waters of any of the creeks or streams, or with any of

the other waters herein mentioned.” [Emphasis added.] At

page 87, the Orr Ditch Decree further provides that the

“owner or owners of each ditch or canal herein authorized to

divert water from the Truckee River or any of its tributar-

ies, or from any ditch or canal or other waterway receiving

water therefrom [shall] install ... a ... headgate.” [Em-

phasis added.]}

C. THE GEOGRAPHIC SCOPE OF THE ORR

DITCH DECREE

The Truckee River Basin drains approximately 1,872

square miles. The Orr Ditch Decree adjudicated all, or

virtually all, of the then existing claims to use water

anywhere in the Truckee River System and Source, from

the Truckee River and its tributaries.

Ill. THE GENERAL ADJUDICATION OF ALL

RIGHTS TO USE WATER IN THE GILA RIVER

SYSTEM AND SOURCE

The Arizona State Legislature authorizes general

adjudications of water rights through Arizona Revised

Statutes § 45-251 et seg. A general adjudication is “an

action for the judicial determination or establishment of

the extent and priority of the rights of all persons to use

water in any river system and source.” A.R.S. § 45-251(2).

River system and source “means all water appropriable

under § 45-141 and all water subject to claims based upon

federal law.” A.R.S. § 45-251(7).

Under the McCarran Amendment (45 U.S.C. § 666)

“(cJonsent is given to join the United States as a defendant

in any suit (1) for the adjudication of rights to the use of

water in a river system or other source.” Consent to waiver

of sovereign immunity by the United States is only given

when the adjudication of the rights to the use of a river

system is all-inclusive. United States v. District Court in

and for Eagle County, Colorado, 401 U.S. 520, 9% S. Ct.

998, 28 L. Ed. 2d 278 (1971).

Prior to adoption of the general adjudication statutes,

Arizona’s water rights litigations were all small decrees

Fes ere mm AB SAS AE RRL RONEN NSN PSSM HN 22 SR sn SE A A SRC

ee ae ee re ee ee ee ee

with limited geographic scope. The Arizona Legislature

requires general adjudication courts to fold these pre-

existing decrees into the overall determination of water

rights for the entire river system and source. A.R.S. § 45-

257(B) provides:

The court, upon review of the report and in ac-

cordance with rule 53 of the Arizona rules of civil

procedure, shall:

1. Determine the extent and priority date of

and adjudicate any interest in or right to use the

water of the river system and source, provided

that when rights to the use of water or dates of

appropriation have previously been determined

in a prior decree of a court, the court shall accept

the determination of such rights and dates of ap-

propriation as found in the prior decree unless

such rights have been abandoned.

When the General Adjudication of All Rights to Use

Water in the Gila River System and Source is complete, it

will have quantified the water rights of all claimants to

use water throughout the Gila River watershed, including

incorporating all existing decrees that previously quanti-

fied water rights for small localized reaches of the Gila

River System and Source. When this process is complete,

the Gila River General Adjudication will be a comprehen-

sive water decree within the meaning of Nevada v. United

States, 463 U.S. 110, 103 S. Ct. 2906, 77 L. Ed. 2d 509

(1983).

REASONS FOR DENYING THE

CONDITIONAL CROSS-PETITION

I. THERE IS NO COMPELLING REASON TO

GRANT CERTIORARI,

“Review on a writ of certiorari is not a matter of right,

but of judicial discretion,” and a petition for certiorari will

be granted only for compelling reasons. Rule 10, Rules of

the Supreme Court of the United States. Over the years,

this Court has used a number of phrases to describe its

criteria for accepting a petition for a writ of certiorari.

Whether the Court requires “special and important rea-

sons,” that the issues be “substantial in character,” that

the issue involve an “important federal question,” or that

the petition contain a “compelling reason,” the rational is

the same — the Court will not use its limited resources to

make determinations that do not have a significant and

material impact.

A federal question raised by a petitioner may be

“of substance” in the sense that, abstractly con-

sidered, it may present an intellectually interest-

ing and solid problem. But this Court does not sit

to satisfy a scholarly interest in such issues. Nor

does it sit for the benefit of particular liti-

gants.... “Special important reasons” imply a

reach toa problem beyond the academic or epi-

sodic.

** *

[I]t is very important that we be consistent in not

granting the writ of certiorari except in cases in-

volving principles the settlement of which is of

importance to the public, as distinguished from

that of the parties, and in cases where there is a

real and embarrassing conflict of opinion and au-

thority between the Circuit Courts of Appeals.

Rice v. Sioux City Memorial Park Cemetery, 349 U.S. 70,

74, 79, 75 S. Ct. 614, 616, 619-620, 99 L. Ed. 897 (1955).

This petition for a writ of certiorari does not involve

an issue of importance to the nation as a whole, to other

state or federal courts, or to the vast majority of the

citizens or water users in Arizona. The Arizona Supreme

Court holding, that there is a mutality exception to res

judicata, is consistent with Nevada v. United States. There

is no question of law involved. The Petitioner simply

believes that the Arizona Supreme Court made a factual

error in its application of the legal principle. There are no

compelling reasons to grant this petition.

Il. THE ARIZONA SUPREME COURT CORRECTLY

DETERMINED THAT THE GLOBE EQUITY NO.

59 DECREE DOES NOT BAR THE SAN CARLOS

APACHE TRIBE FROM CLAIMING THE RIGHT

TO USE WATER FROM THE TRIBUTARIES OF

THE MAINSTEM OF THE UPPER GILA RIVER

BECAUSE OF RES JUDICATA.

Claims in a current case are not subject to res judicata

claim preclusion unless the previous litigation meets three

criteria. “Res judicata applies when ‘the earlier suit .. . (1)

involves the same “claim” or cause of action as the later

suit, (2) reaches a final judgment on the merits, and (3)

involved identical parties or privies.’” [Citation omitted.]

Mpoyo v. Litton Electro-Optical Systems, 430 F.3d 985, 987

(9th Cir. 2005). “A judgment or decree among parties to a

lawsuit resolves issues as among them, but it does not

conclude the rights of strangers to the proceedings.”

Richards v. Jefferson County, Alabama, 517 U.S. 793, 797,

116 S. Ct. 1761, 1765, 135 L. Ed. 2d 76 (1996). “In order for

a judgment in a prior suit to create a res judicata bar of a

subsequent suit, the second suit must involve the ‘same

parties or their privies based on the same cause of action.’

Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S. Ct.

645, 649, 58 L. Ed. 2d 552 (1979).” Alaska Sport Fishing

Association v. Exxon Corporation, 34 F.2d 769, 773 (9th

Cir. 1994).”

Phelps Dodge Corporation was not a party, nor was it

in privity with any party, to the Globe Equity No. 59

Decree when it was entered in 1935.” Phelps Dodge was

" See also Gilbert v. Board of Medical Examiners, 155 Ariz.169,

745 P-2d 617 (App. 1987).

* See also PFS v. Industrial Commission of Arizona, 191 Ariz. 274,

278, 955 P2d 30, 34 (App. 1997) (“A judgment establishes claim

preclusion only between the parties and their privies.”)

" Subsequent to the entry of the Globe Equity No. 59 Decree,

Phelps Dodge Corporation acquired lands that have water rights under

the Decree. As to these lands, which divert decreed water from the

mainstem of the Gila River, Phelps Dodge Corporation is in privity and

(Continued on following page)

specifically dismissed from the Globe Equity litigation,

without prejudice, pursuant to a stipulation with the

United States. The party or privy requirement of claims

preclusion is particularly strong in the case of a consent

decree. The Globe Equity No. 59 Decree was a consent

decree. See United States v. Gila Valley Irrigation District,

454 F.2d 219 (9th Cir. 1972) and United States v. Gila

Valley Irrigation District, 31 F.3d 1428 (9th Cir. 1994).

In Lerain NAACP v. Lorain Board of Education, 979

F.2d 1141, 1148 (1992), the Sixth Circuit explained:

The consent decree is “a strange hybrid of law.”

... It is at once “a voluntary settlement agree-

ment which could be fully executed without judi-

cial intervention” and “a final judicial order ...

placling] the powers and prestige of the court be-

hind the compromise struck by the parties.” [Ci-

tation omitted.] Thus a consent decree is aptly

described as “a settlement agreement subject to

continued judicial policing. Since consent decrees

and orders share many of the attributes of ordi-

nary contracts, “they should be construed basi-

cally as contracts.” [Citation omitted.]

“Indeed, it is the parties’ agreement that serves

as the source of the court’s authority to enter any

judgment at all.... More importantly, it is the

agreement of the parties, rather than the force of

law upon which the complaint was originally

based, that creates the obligations embodied in a

consent decree.” Local Number 93, International

Association of Firefighters, AFL-CIO, C.L.C. v.

City of Cleveland, 478 U.S. 501, 522, 106 S. Ct.

3063, 3075, 92 L. Ed. 2d 405 (1986).

“A consent decree binds only the consenting parties.

See, e.g., United States v. Ward Baking Co., 376 U.S. 327,

receives both the benefits and responsibilities of the Decree. The claims

brought by Phelps Dodge Corporation in this petition for a writ of

certion’, deal with lands owned by Phelps Dodge Corporation that

divert, water only from tributaries to the Gila River.

84 S. Ct. 763, 11 L. Ed. 2d 743 (1964); Hughes v. United

States, 342 U.S. 353, 72 S. Ct. 306, 96 L. Ed. 394 (1952).”

Keith v. Volpe, 118 F.3d 1386, 1392 (9th Cir. 1997). A

judgment by consent against a plaintiff does not operate as

issue preclusion or claims preclusion against one not a

party to the agreement. Gall v. South Branch National

Bank of South Dakota, 783 F.2d 125, 127 (8th Cir. 1986).

Phelps Dodge Corporation was not a participant in the

Globe Equity consent decree. Phelps Dodge Corporation

did not consent to be bound by the terms of the Globe

Equity No. 59 Decree.

The Arizona Supreme Court correctly determined that

claims preclusion requires “identity or privity between

parties in the two suits.” Jn re The General Adjudication of

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

212 Ariz. 64, 127 P.3d 882, 887 (2006). The Arizona Supreme

Court also correctly determined that Phelps Dodge Corpora-

tion was not a party, or in privity with a party, to the Globe

Equity No. 59 Decree and that Phelps Dodge Corporation

was not a consenting party. The Arizona Supreme Court

correctly determined that Phelps Dodge Corporation could

not claim the affirmative defense of claims preclusion (res

judicata) in the Gila River General Adjudication.

Ill. THE ARIZONA SUPREME COURT CORRECTLY

DETERMINED THAT THE NEVADA V. UNITED

STATES EXCEPTION TO THE MUTUALITY RE-

QUIREMENT OF RES JUDICATA DOES NOT

CAUSE THE GLOBE EQUITY NO. 59 DECREE

TO BAR THE RIGHT OF THE SAN CARLOS

APACHE TRIBE TO USE WATER FROM THE

TRIBUTARIES OF THE MAINSTEM OF THE

UPPER GILA RIVER.

In Nevada v. United States, supra, this Court crafted a

narrow exception to the mutuality requirement of claims

preclusion (res judicata). Phelps Dodge Corporation’s

allegation that the Nevada exception is applicable to the

Globe Equity No. 59 Decree is incorrect. In Nevada, this

Court referenced the general rule “that a prior judgment

will bar the ‘parties’ to the earlier lawsuit, ‘and those in

privity with them,’ from relitigating the cause of action.”

463 U.S. at 135, 103 S.Ct. at 2920. The Court noted

“[w]hile mutuality has been for the most part abandoned

in cases involving collateral estoppel, {citations omitted] it

has remained a part of the doctrine of res judicata,” 463

U.S. at 143, 103 S. Ct. at 2925, then stated “nevertheless,

exceptions to the res judicata mutuality requirement have

been found necessary, [citation omitted] and we believe

that such an exception is required in this case.” Jd.

The exception to the mutuality requirement of res

judicata arose from the comprehensive nature of the

original Orr Ditch Decree. “{A]s the Court of Appeals

determined, it ‘was no garden variety quiet title action.’”

Id. “As we have already explained, everyone involved in

Orr Ditch contemplated a comprehensive adjudication of

water rights intended to settle once and for all the ques-

tion of how much of the Truckee River each of the litigants

was entitled to.” [Emphasis added.] Jd.

The Orr Ditch Decree resulted from a comprehensive

water rights litigation that was in the nature of a contem-

porary general adjudication.

A quiet title action for the adjudication of water

rights, such as the Orr Ditch suit, is distinctively

equipped to serve these policies [finality of deci-

sions involving land and water] because “it en-

ables the court of equity to acquire jurisdiction of

all the rights involved and also of all the owners

of those rights and thus settle and permanently

adjudicate in a single proceeding all the rights,

or claims to rights, of all the claimants to the wa-

ter taken from a common source of supply.” [Em-

phasis added.]

463 U.S. at 129 n. 10, 103 S. Ct. at 2918 n. 10. In support

of its requirement that a prior decree be comprehensive

before a mutuality exception to res judicata can arise, this

Court quoted from Morgan v. Udy, 58 Idaho 670, 79 P.2d

295 (1938): “[I]n the settlement of cases of this character

every user of water on the stream and all of its tributaries

in litigation are interested in the final award to each

claimant.” [Emphasis added.] 463 U.S. at 139, 103 S. Ct.

at 2923.

This Court concluded, “We agree with the Court of

Appeals that under ‘these circumstances it would be

manifestly unjust ... not to permit subsequent appropria-

tors’ to hold the Reservation to the claims it made in Orr

Ditch.” [Emphasis added.] 463 U.S. at 144, 103 S. Ct. at

2925. The Orr Ditch Decree allowed for an exception to the

mutuality requirement of res judicata because the Orr

Ditch Decree adjudicated the water rights to the entire

Truckee River and all of its tributaries in Nevada. The Orr

Ditch Decree was comprehensive.

In the McCarran Amendment, Congress waived the

United States’ sovereign immunity in certain water rights

quantification cases. The precondition for waiver of sover-

eign immunity was that the proceedings had to be com-

prehensive general adjudications of all the water rights in

an entire river system. Nine years before issuing its

decision in Nevada v. United States, this Court empha-

sized the essential nature of comprehensiveness in general

adjudications of water rights in entire river systems.

The clear federal policy evidenced by that legisla-

tion [McCarran Amendment] is the avoidance of

piecemeal adjudication of water rights in a river

system.... This concern is heightened with re-

spect to water rights, the relationships among

which are highly interdependent. Indeed, we

have recognized that actions seeking the alloca-

tion of water essentially involve the disposition of

property and are best conducted in unified pro-

ceedings. ... The consent to jurisdiction given by

the McCarran Amendment bespeaks a policy

that recognizes the availability of comprehensive

state systems for adjudication of water rights as

the means for achieving those goals. [Emphasis

added.|

Colorada River Water Conservation District v. United States,

424 U.S, 800, 819, 96 S. Ct. 1236, 1247, 471 L. Ed. 2d 483

(1976).

The Ninth Circuit explained the McCarran require-

ments for waiver of sovereign immunity in water rights

cases.

There can be little doubt as to the type of suit

congress had in mind. It was not a private dis-

pute between certain water users as to their con-

flicting rights to the use of a stream system;

rather it was the quasi-public proceeding which

in the law of western waters is known as a “gen-

eral adjudication” of a stream system; one in

which the rights of all claimants on a stream sys-

tem as between themselves are ascertained and

officially stated.

State of California v. Rank, 293 F.2d 340, 347 (1961)

(reversed on other grounds sub nom. Dugan v. Rank, 372

U.S. 609, 83 S. Ct. 999, 10 L. Ed. 2d 15).

Two years after Nevada v. United States, the Ninth

Circuit denied a mutuality exception to res judicata

because the water rights litigation was not comprehensive

and encompassing.

Because the 1945 consent decree was not a gen-

eral adjudication of all water rights in the

Yakima River Basin and did not adjudicate the

treaty rights of the Yakima Nation,[FN4] appel-

lants’ res judicata argument also fails.

FN4. The 1945 decree resulted from a suit filed

by the United States in 1939, seeking a determi-

nation of their responsibilities to various contract

holders in the Yakima Irrigation District. Neither

side joined the additional parties that would

have been necessary to a general adjudication,

like the one involved in Nevada v. United States.

[Citation omitted.] The final decree settled only

the rights of the irrigation districts made party

to the proceeding.

Kittias Reclamation District v. Sunnyside Valley Irrigation

District, 763 F.2d 1032, 1035 (1985). See also State of

Washington Department of Ecology v. Grimes, 121 Wash.

2d 459, 467, 852 P.2d 1044, 1048-1049 (1993) (“A general

adjudication is a special form of quiet title action to

determine all existing rights to the use of water from a

specific body of water.”)

“The only proper method of adjudicating the rights on

a stream ... is to have all owners of lands on the water-

shed ... in court at the same time.” People of the State of

California v. United States, 235 F.2d 647, 663 (9th Cir.

1956). The Orr Ditch Decree was a comprehensive water

rights decree that determined all of the existing rights to

use water from the Truckee River and all of its tributaries

in Nevada (i.e., the entire river system and source). The

Globe Equity No. 59 Decree, on the other hand, was not

intended to be a comprehensive water rights decree.

Prior to the adoption of the Globe Equity No. 59

Decree, the United States dismissed (without prejudice)

any claims against any named defendants who took water

only from tributaries to the mainstem of the Upper Gila

River. Phelps Dodge Corporation entered into a stipulation

whereby it agreed that it would be dismissed from the

Globe Equity litigation (without prejudice) because it only

took water from the tributaries to the mainstem of the

Upper Gila River and, therefore, it was outside the geo-

graphic scope of the Globe Equity litigation.

Phelps Dodge Corporation willingly took advantage of

its dismissal from the Globe Equity litigation, based on the

fact that its water use from the tributaries was not within

the geographic scope of the litigation — thereby ensuring

that the ultimate decree would not be comprehensive.

Now, however, Phelps Dodge Corporation argues that the

Globe Equity No. 59 Decree should still be treated as if

Phelps Dodge had actually participated. Having avoided

the responsibilities of the Globe Equity No. 59 Decree,

Phelps Dodge Corporation has no rights under the Decree.

The Arizona Legislature recognized the limited

nature of the small localized water rights decrees issued

by various courts before the adoption of the general

adjudication statutes. A.R.S. § 45-257(B) requires the

general adjudication court to incorporate the water

rights quantified by the earlier, non-comprehensive

water rights decrees into its final decree. If the Globe

Equity No. 59 Decree, the Kent Decree, or the San Pedro

Decision were comprehensive water rights decrees,

within the meaning of Nevada v. United States, they

would be self-encompassing and it would not be necessary

to include them in a broader decree.

The Globe Equity No. 59 Decree adjudicated the water

rights of approximately 140,000 acres of the 36,851,000

acres of land in the Gila River System and Source. The

Globe Equity No. 59 Decree quantified the water rights of

less than four-tenths of one percent of the land within the

Gila River watershed. The Globe Equity No. 59 Decree did

not quantify the water rights to over 36,500,000 acres of

the land within the Gila River watershed. When the Gila

River General Adjudication is complete, it will have

determined all of the existing rights to use water on any

land within the Gila River System and Source. The final

decree ultimately issued by the Gila River General Adju-

dication Court will be a comprehensive water rights decree

that will be subject to the Nevada v. United States mutual-

ity exception to res judicata.

The Orr Ditch Decree quantified the water rights of

one hundred percent of the acres of land within the

Truckee River System and Source (including all of its

tributaries). The Globe Equity No. 59 Decree quantified the

water rights of less than four-tenths of one percent of the

acres of land within the Gila River System and Source,

and did not include water rights from any of the Gila

River’s tributaries. A decree that quantifies the water

rights of less than four-tenths of one percent of the water

rights in an entire river watershed is not comprehensive,

and is not subject to the mutuality exception to res judi-

cata.

‘he Arizona Supreme Court correctly determined that

the ‘zlobe Equity No. 59 Decree was not comprehensive

because it failed to quantify water rights to any tributary

of the Upper Gila River. “[B]ecause we have determined

that the Decree itself precludes only additional claims to

the mainstem, any assertion of oreclusive effect by the

Nonparties with respect to the waters of the tributaries

fails.” In re The General Adjudication of All Rights to Use

Water in the Gila River System and Source, supra, 127

P.3d at 902.

IV. THE ARIZONA SUPREME COURT CORRECTLY

DECIDED THAT THE UNITED STATES PROP-

ERLY SPLIT ITS WATER RIGHTS CLAIMS TO

THE MAINSTEM OF THE UPPER GILA RIVER

AND THE TRIBUTARIES TO THE MAINSTEM

MADE ON BEHALF OF ‘THE SAN CARLOS

APACHE INDIAN RESERVATION IN THE

GLOBE EQUITY NO. 59 DECREE.

Phelps Dodge Corporation asserts that it should be

allowed to allege a claims preclusion (res judicata), arising

from the Globe Equity No. 59 Decree, even though it

stipulated to having its claims dismissed from the litiga-

tion without prejudice. The basis for this assertion is a

claim that the United States did not “split” its claim to the

use of the water of the tributaries from its claim to the use

of the water of the mainstem of the Upper Gila River.

Phelps Dodge Corporation references cases that

discuss the general principle that res judicata can attach

to both claims that were brought and claims that could

have been brought. See Scoggin v. Schrunk, 522 F.2d 436

(9th Cir. 1975); United States v. Skokomish Indian Tribe,

764 F.2d 670 (9th Cir. 1985); Simmons v. New Public

School District No. 8, 251 F.3d 1210 (8th Cir. 2001);

California v. Randtron, 284 F.3d 969 (9th Cir. 2002); and

May v. Parker-Abbott Transfer and Storage, Inc., 899 F.2d

1007 (10th Cir. 1990). The cases cited by Phelps Dodge

Corporation actually support the Arizona Supreme Court's

determination that the United States properly “split” its

water rights claim to the tributaries from its water rights

claim to the mainstem of the Upper Gila River.

Scoggin v. Schrunk confirms that, if a case involved

two separate claims upon which the plaintiff was entitled

to separate remedies, the first action did not bar recovery

on the unjoined claim in the second action. 522 F.2d at

437. Arizona had dozens of small, localized water rights

decrees prior to the adoption of the general adjudication

statute. None of the parties in any of those localized

decrees brought action against every other water user in

the Gila River System and Source. They chose to sue some

water users (those in close proximity who took water from

the same localized reach) and not sue other water users.

There was no obligation to sue every other water user in

the state. The United States’ decision to bring judicial

action against only part of the potential defendants was a

permissible and common practice, which does not create

any res judicata effect.

In United States v. Skokomish Indian Tribe, the Ninth

Circuit held that res judicata did not prevent three Indian

tribes from litigating issues between themselves when “it

would not ‘partially undo’ the earlier decree.” 764 F.2d at

671. The Globe Equity No. 59 Decree quantifies and allows

enforcement of water rights as between specific parties

who all take their Globe Equity No. 59 Decree water from

the mainstem of the Gila River. Preventing Phelps Dodge

Corporation, which was dismissed from the Globe Equity

litigation without prejudice from claiming a res judicata

effect from the Decree will not affect the rights of parties to

the Globe Equity No. 59 Decree in any way, let alone

“partially undo” the Decree.

Simmons v. New Public School District No. 8, recog-

nized that a prior judgment does not have a claims preclu-

sion (res judicata) effect on a subsequent litigation “when

the parties to the first action ‘have agreed in terms or in

effect that the plaintiff may split his claim, or the defen-

dant has acquiesced therein.’” 251 F.3d at 1214. With the

entry of the Globe Equity No. 59 Decree, the parties

agreed, pursuant to the express terms of the consent

decree, that all parties who took water only from the

tributaries would be dismissed without prejudice ~— thereby

affirming the decision of the United States to “split” its

claim to water from the tributaries from its claim to water

from the mainstem of the Upper Gila River. Phelps Dodge

Corporation “acquiesced therein” by stipulating to its

dismissal from the litigation without prejudice.

Similarly, California v. Randtron, affirms that “a

party can waive res judicata by consenting to split the

claim into two suits.” 284 F.3d at 975. Phelps Dodge

Corporation waived any potential res judicata effect from

the Globe Equity litigation when it consented to the

United States’ splitting of its claim to tributary water from

its claim for mainstem water by stipulating to its dis-

missal without prejudice.

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

recognized that “consent decrees are of a contractual

nature and, as such, their terms may alter the preclusive

effects of a judgment.” 899 P.2d at 1010. In that particular

case, the consent decree was “absolutely silent as to the

settlement’s intended res judicata effect.” Id. In Globe

Equity, the consent decree is crystal clear in its intent that

all parties with claims to use water only from the tributar-

ies be dismissed without prejudice, and that these dis-

missed defendants receive neither benefits nor detriments

from the Decree’s provisions.

Phelps Dodge Corporation had, at one time, been a

party defendant in the Globe Equity litigation. Phelps

Dodge Corporation’s inclusion in the litigation was a

mistake, because the United States was only making

claims to the right to use water from the mainstem of the

Upper Gila River. The United States decided that it would

not seek to quantify its rights to water from the tributar-

ies. Phelps Dodge Corporation stipulated to the claims

against it being dismissed without prejudice.

Phelps Dodge Corporation is asking this Court to

determine that a dismissal without prejudice means that

the plaintiff can never refile the action against the party

who was dismissed. Phelps Dodge Corporation is asking

this Court to prohibit parties from choosing to end a

current litigation, without prejudice, with the option of

reinstituting the litigation at a future date. This request

runs counter to established common law.

A “‘dismissal . . . without prejudice’ is a dismissal that

does not ‘operatie] as an adjudication on the merits,’ Rule

41(aX(1), and thus does not have a res judicata effect.”

Cooter & Gell v. Hartmarx Corporation, 496 U.S. 384, 396,

110 S. Ct. 2447, 2456, 110 L. Ed. 2d 359 (1990). “Dismissal

without prejudice indicates that judgment is not on the

merits and will have no preclusive effect.” Jet, Inc. v.

Sewage Aeration Systems, 223 F.3d 1360, 1364 (Fed. Cir.

2000). See also Santana v. City of Tulsa, 359 F.3d 1241,

1246 (10th Cir. 2004); and Mann v. Haigh, 120 F.3d 34, 35

(4th Cir. 1997) (“the district court’s earlier dismissal was

made expressly without prejudice and, accordingly, has

neither an issue nor a claim preclusive effect”).

The inapplicability of res judicata to cases that are

dismissed without prejudice is not a new legal doctrine.

The law was the same in 1935, when Phelps Dodge Corpo-

ration stipulated to its dismissal from the litigation ~

without prejudice. “A bill dismissed without prejudice is

not a bar to a subsequent suit.” Robinson v. American Car

& Foundry Co., 135 F. 693, 696 (7th Cir. 1905). “The cases

are legion wherein a dismissal without prejudice has been

construed as a reservation of a right to reinstate the

proceeding.” Id.

The United States utilized the most comprehensive,

most effective, most open and notorious means of “split-

ting” its claim to the water of the tributaries and its claim

to the water of the mainstem of the Gila River. The United

States dismissed all of its claims against all of the parties

who diverted water only from the tributaries. Phelps

Dodge Corporation stipulated to the dismissal of all claims

against its use of the water of the tributaries, without

prejudice. Phelps Dodge Corporation was well aware that

dismissal of the claims against it, without prejudice,

meant that the claims could, and almost certainly would,

be brought at some time in the future. That time is sow.

The Arizona Supreme Court properly determined that

“parties to a consent decree can agree to limit the decree’s

preclusive effects.” In re The General Adjudication of Alli

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

supra, 127 P.3d at 888. The Arizona Supreme Court was

correct in its determination that a “dismissal without preju-

dice is a dismissal that does not operate as an adjudication

upon the merits and thus does not have a res judicata

effect.” 127 P.3d at 892. The Arizona Supreme Court

correctly determined that Phelps Dodge Corporation has

no right to assert a claims preclusion (res judicata) effect,

arising from the Globe Equity No. 59 Decree, in the Gila

River General Adjudication.

CONCLUSION

With regard to its lands that take water from the

tributaries, Phelps Dodge Corporation is not now, and

never has been, a party to the Globe Equity No. 59 Decree.

With regard to the lands and water rights claims that are

the subject of this petition for writ of certiorari, Phelps

Dodge Corporation is not in privity with any party to the

Globe Equity No. 59 Decree. Phelps Dodge Corporation’s

failure to be a party, or in privity with a party, to the Globe

Equity No. 59 Decree is fatal to its claim of claim preclu-

sion (res judicata) in the Gila River General Adjudication.

Unlike the Orr Ditch Decree, the Globe Equity No. 59

Decree is not a comprehensive water rights adjudication of all

the rights of all the parties to the use of all the water of the

entire river system and source. Phelps Dodge Corporation

knew that the Globe Equity No. 59 Decree was not compre-

hensive, and that it was not intended to be comprehensive

when it was entered in 1935. Phelps Dodge Corporation

actively worked to ensure that the Globe Equity No. 59 Decree

would not be comprehensive by stipulating to the dismissal of

the action against its claims to the waters of the tributaries.

A decree that quantifies less than four-tenths of one

percent of the land within a watershed is not comprehensive,

as is required before the Nevada v. United States exception

to the mutuality requirement of res judicata can be imposed.

The United States properly “split” its claim to the

waters of the tributaries and its claim to the waters of the

mainstem of the Upper Gila River by dismissing from the

litigation, without prejudice, all party defendants who took

water only from the tributaries. Dismissal without prejudice

has no claims preclusion (res judicata) effect. Following a

dismissal without prejudice, the plaintiff has the right to

refile the action. Phelps Dodge Corporation consented to

the United States’ decision to split the claims when Phelps

Dodge stipulated to being dismissed from the litigation

without prejudice.

Respectfully submitted,

RODNEY B. LEwIs

Counsel of Record

JENNIFER K. GIFF

General Counsel

JOHN T. HESTAND

TIMOTHY L. PIERSON

RUTH E. KOESTER

Post Office Box 97

Sacaton, Arizona 85247

Telephone: (520) 562-9760

Attorneys for the Gila River

Indian Community

App. 1

APPENDIX 1

Globe Equity No. 59

In the District Court of the United States

In and for the District of Arizona

THE UNITED STATES OF AMERICA

vs.

GILA VALLEY IRRIGATION DISTRICT, ET AL.

DECREE ENTERED JUNE 29, 1935

Page 6

This cause came on to be heard at this term, and

thereupon it was shown to the court:

That the plaintiff and the parties defendant whose

claims and rights have been presented by answer or

stipulation and remain for determination herein, have

concluded and settled all issues in this cause as between

plaintiff and said parties defendant, and as between said

defendants and each of them and every other thereof, and

mutually have agreed — all as evidenced, for plaintiff, by

the assenting signatures, endorsed at the end hereof, of its

solicitors of record and the Attorney General and Secre-

tary of the Interior of the United States, and for said

defendants, by the assenting signatures, likewise endorsed

at the end hereof personally, or of their several solicitors of

record — that such settlement should be embodied in and

confirmed and made effective by way of the within decree

of the Court in this cause defining asd adjudicating their

claims and rights as against each other in identical form

and substance as hereinafter set forth; and the Court upon

consideration thereof and of the record herein as to the

disposal of the parties defendant who have been separated

from the cause, and being duly informed in said premises,

App. 2

doth find, order, adjudge, and declare its decree herein to

be as follows, namely:

That by the orders of this Court dated January 22,

1929, and March 11, 1930, this suit and the amended

complaint herein, upon the motion of plaintiff, were

dismissed as to defendants:

John S. Abbott; Charles A. Adams; A. Allen;

Francisco Alvidrus; Paul Beeker; George P. Ben-

nett; Mary E. Benscoe; Bentz Brothers; J. W.

Bentz; George A. Bigler; C. O. Billingsley; Est. of

Paul Blackmore; B. A. Boyles; Sam Brown; New-

ton Bradley; Juan Cachon; Ella Carpenter; J. C.

Carpenter; Rachel Carr; John Castro; Chono Ce-

layo; Tim Chapman; Ben M. Crawford; W. J.

Davis; G. H. Dinsmore; John Eastman; Dud EI-

dridge; J. F. English; Helen T. French; Mattie M.

Hall; Hawkins & Simms Milling & Irrigating

Company; A. W. Heath; Mrs. Clara Hicks; James

Henshall; Jacob Hildebaugh; J. I. Hinkle; J. P.

Hinkle; A. M. Hooper; Roger Hoopes; J. G. Hop-

kins; R. T. Horrell; Arthur Houser; S. L. Johns;

Bennet J. Kellner; Ernest F. Kellner; H. D. Kep-

per; J. H. Kerby; J. H. Lacey; John Laffey; Louise

LeBaron; James LeHoxi; W. A. Leonard; Mrs.

Frank Lewis; J. W. Lightfoot; George Lobb;

Gordon McLean; B. Mately; Rafael Memos; Man-

rico Mijia; Sidney B. Moeur; E. C. Montgomery;

Charles Morrell; Reputhio Moriz; George

Olmstead; Lillian W. Pearl; James A. Perkins;

Marie C. Peters; S. K. Phillips; Frederick M.

Putnam; John Ralston; Gabriel Robles; H. N.

Russel; Victoriana Ruiz; J. Ryan; H. Salazar;

Manuel Serano; S. Schultz; Charles H. Vann;

App. 3

Walter Shayeb; Estate of Charles R. Sligh; Nol-

berto Subia; Edward H. Sinclair; George Thomp-

son; Jose Tonis; J. G. Turney; Manual Urtiaga;

Elijah Urtiaga; Judd Webster; George W. Wells;

and O. H. Brown;

W. L. Cauthen; W. R. Elliott; William Jack-

son; J. F. Kepper; D. T. McGuire; and H. B.

Sweeting; |

it having been found and determined by the Court in that

relation that they and each of them were not proper or

necessary parties defendant in this cause; which said

action of the Court in these premises hereby confirmed.

That by way of amended complaint, as filed herein on

the 5th day of December, A.D., 1927, and orders of this

Court bringing in new parties defendant under said

amended complaint,

Page 7

this suit and the amended complaint herein were directed

against each and all of the defendants named below, to-

wit:

D. Bertoglio; Beatrice Perry; and H. B. Wig-

gins;

Also, James R. Pruett; Antonio Specia and

H. B. Summers;

Also, American Smelting and Refining Com-

pany; A. A. Anderson; John N. Anderson; Mary A.

Antenoll; Estate of Walter Baitty, Homer H. Mar-

tin, Administrator; J. W. Baker; Henry Bames-

berger; Ruth R. Barham; Estate of Thomas

App. 4

Barrett, Dan T. Peart, Administrator; Pansy

Kenower Bartlett; Madelene Bassler; Albert C.

Becken; Grace R. Becken; Charles F. Bennett;

Jarvus D. Bennett; Francis D. Blair, Clifton Bo-

gard; C. D. Bradley; Ida M. Bradley; John R.

Bradshaw; Esther A. Brockway; Ira S. Brayton;

Marshall F. Brockway; Charlotte Hall Brown;

Elizabeth Brown; J. P. Brown; Sarah B. Brown;

Thresa Hall Brown; Estate of W. F. Brown, P. D.

Overfield, Administrator; John J. Buggs; John W.

Burris; Lee Robinson Burris; L. B. Cadwell; Casa

Grande Valley Bank; Mike Celaya; Estate of W.

B. Charlton, John E. Charlton, Administrator;

Albert J. Christensen; Edith M. Clemans; Hazel

H. Clemans; Winnefred W. Clemans; W. J. Cle-

mans, Jr.; W. P. Clements; Mrs. Charles E. Cleve-

land; Inez H. Conrad; Thomas A. Crow; Jennie

Davidson; Maurice Dodd; Tracy Eastman; Chris-

tobell G. Ellis; Joe Erny; Jesus Espinosa; Jose T.

Espinosa; Salvador 8S. Feliz; C. A. Fitzgerald;

James D. Freeman; Fidelity Savings & Loan As-

sociation; First National Bank of Florence; May

E. Furback; Kathrina Gack; Estate of George F.

Gallagher, Robert Denton, Administrator; L. D.

Gamble; M. L. Gilbert; George F. Graham; Nellie

R. Gochenouer; Joseph Greene; Virginia Hales;

John Hamilton; A. T. Hammons, Receiver; May

Catlin Hansen; J. B. Harsha; Vernon W. Havins;

John Hendricks; W. E. Herron; Edith B.

Jamieson; James C. Jayne; E. R. Johnson; Rich-

ard J. Jones; Julia R. Julian; Fred R. Kenover;

Ola R. Kenover; H. B. Klingenberg; Anna E.

Kochsmeier; Frederick Kochsmeier; Henry

Kochsmeier, Sr.; Henry D. Kochsmeier; Maria

Kochsmeier; Gustav K. Kratzka; James J. Kruse;

J. E. LaFleur; W. W. Lane; Dirk Lay; Elizabeth L.

Lay; Estate of Lola W. Lee, Dan T. Peart, Admin-

istrator; David A. Little; Minnie Lobb; Estate of

App. 5

W. H. Lonergan, T. A. Lonergan, Administrator;

May H. McBennett; A. L. McCann; Alpha E.

McCann; Minnie M. McCann; James K. McCarty;

Carrie McDowell; M. W. McDowell; Gertrude B.

McGee; Glen CC. McKenzie; Elizabeth P.

McMurray; Melanie Mendell; Rita Marquez; Ivey

Marshall; Ralph K. Marshall; Joe Marta; David

Omer Martin; Ben B. Mathews; Josiah J. Maxey;

R. D. Melick; Lillian C. Merchant; John B.

Michea; J. L. Mills; Mary L. Miles; R. M. Miller;

Lillian I. Mitchell; Henry G. Moeller; Fayette

Moore; Ethel M. Moorehouse; H. W. Moorehouse;

Vashti B. Moorehouse; Margarete L. Murphy; J.

S. Murry; C. H. Niemeyer; Lillian O’Connor;

Olive J. O'Connor; Lewis Olesen; Antonio S.

Padilla; Florence Palamounter; Howard G.

Palamounter; Lee Patrick; Roy F. Patrick; George

W. Pattee; Harriet E. Pattee; Estate of Earl P.

Patterson, Thomas D. Derry, Administrator; Wil-

lie K. Pearson; Emma Pennington; Walter J.

~ Pennington; Amandus C. Peters; Addie Phillips;

Margaret E. Pierce; Pinal Investment Company;

Frank Pinkley; Eli E. Piper; W. M. Pollock; Grace

P. Pottebaum; Robert H. Pottebaum; Estate of W.

Y. Price; Mrs. W. Y. Price; Alice M. Prouty; Lloyd

W.-Prouty; W. Scott Prouty; Edwin Ralph; Hen-

derson H. Raybourn; A. V. Read; Martin J. Reed;

Fern M. Richardson; H. G. Richardson; S. H. Ro-

rabaugh; Ralph M. Rounds; Andris V. Salazar;

Christiana Salazar; John Saxman; B. W. Scholtz;

Estate of Elizabeth Schultz, Fred T. Armstead,.

Administrator; William J. Schultze; Charles M.

Schwab; Emma B. Schwarm; Clara C. Seagoe;

George P. Sellers; Mary S. Scheafe; Elizabeth

Shannon; Mary L. Shannon; Chloren B. Shiflet;

-dJohn Sigfrid; Carrie S. Sigler; George W. Sigler;

J. O. Simmons; Southern Arizona Bank & Trust

Company; Herbert G. Sparks; C. C. Springer;

App. 6

Mary E. Stevens; T. V. Stokes; Walter W. Stovall;

Tim Sullivan; Surety Abstract & Realty Com-

pany; J. C. Swan; Estate of John W. Sweeney,

Sam Sweeney, Administrator; Chas. F. Tantlin-

ger; S. E. Tellyer; Frank A. Thackery; Augusta

Thor; Fred Thor; Mae Tiffiny; Mrs. Billie

Page 8

Treat; S. Louise Trekell; Mary E. Truman; E. S.

Turville; Mrs. A. C. Urban; F. A. Urban; Valley

Bank of Phoenix; Calbert L. Vance; Viola C.

Vance; Ed G. Van Haren; Gregorio Vasquez;

Augustine Villar; Joe Villar; George P. Walker;

Harry Ward; Roy S. Ward; C. E. Waterbury; Josie

Waterbury; Katie E. Weaver; Adolphus Weyrick;

Natalia M. White; Dorcas E. Whitlow; Josephine

R. Wills; Sophia Wind; Jessie P. Woody; Soren

Yensen; and Elsie DeWolf Zellweger;

That original process thereunder by way of Subpoena

Ad Respondendum, or by Court Order under section 57 of

the Judicial Code, was duly issued and served, with a copy

of the amended complaint, upon each of the aforenamed

defendants, and each of said defendants failed and ne-

glected to make or file an answer or otherwise defend or

make a plea to said amended complaint as required by

Rule 16 of the Rules of Practice for Courts of Equity of the

United States; that orders taking the amended complaint

as confessed by them and each of them were duly made

herein. and entered in the Order Book on the 25th day of

November, 1929, the 11th day of March, 1930 and on the

19th day of December, 1934, in the office of the Clerk of

this Court: each such order being so made and entered

after the failure of each of the particular defendants

named therein to make answer, defense or other plea as

aforesaid; that no proceeding has been taken or initiated

App. 7

by them or any of them since the entry of said orders, and

each thereof; and said defendants and each and every of

them are now and remain in default of any answer, de-

fense or other plea herein, and more than 30 days have

elapsed since the entry of said orders and each thereof.

That under the orders Pro Confesso aforesaid, the

amended complaint is taken as confessed, and it is or-

dered, adjudged and decreed herein, that the defendants

above named in this article and each thereof, as against

any of the parties plaintiff or defendant in this cause, their

assigns or successors in interest, or their rights as herein

decreed; that said defendants and each of them have no

right to the use of water from the Gila River as against the

parties to this action other tan those set up in this

decree, and they and each «’ them and, their heirs, execu-

tors, administrators and a**.3ns or successors in interest

are debarred and estopped from asserting or claiming any

different or other, right, title or interest in or to the water

or the use of any water from the Gila River as against the

rights of the plaintiff and those of the defendants deter-

‘mined and set up in this decree.

Ill

That, upon the motion of the plaintiff, by Order of this

Court dated March 30, 1935, this suit and the amended

complaint herein were dismissed without prejudice as to

the following defendants, to-wit:

S. B. Blake; Cluff & Mitchell; Colvin-Jones

Consolidated Ditch Co.; John H. Davidson; W. P.

Ferris; Jose Gonzales; T. Hinton; Layton & Ison;

James Layton; E. D. McEuen; Roy A. Martin;

Ed Moody; J. C. Norton; George A. Olney; Asa

App. 8

Packard; N. E. Platt; W. E. Posy; S. A. Powell;

Pursley & Nash; Mrs. Mary Reynolds; Bert E.

Rose; Smithville Extension Canal Company; Ci-

naoo Telles; E. L. Tidwell; Louis Voelokei; W. J.

Walton; T. W. Wamslee; Estate 1 Webster, F. A.

Webster, Administrator; Estate of J. R. Williams;

B. D. Wilson; Young & Ridgway;

Also, Bank of Duncan; D. E. Barlow; J. W. -

Becker; Billingsley Canal Company; R. T. Bishop;

Harry H. Boyer; Burcher Ditch Company; Estate

of W. C. Cheatham; Edward C. Cole; Consoli-

dated Canal Company; J. H. T. Cosper; Cosper-

Wilson Canal Company; Ethel M. Cunningham;

E. C. DeMoss; Double Circle Cattle Company;

Thomas Edwards; Bonnie Elrage; Mangus El-

rage; Mrs. Geo. J. Filleman; J. J. Filleman;

Franklin Canal Company; Fred J. Fritz; Mrs.

Katie Fritz; Furr & Blain; Harve K. Gatlin; Gila

Ranch Company; Greenhorn Ditch Company;

Greenhorn Irrigating Canal; County of Greenlee;

O. C. Greenwell; Ole Hagan; William F. Hagan;

S. P. Hale; Francelle Heywood; Mrs. Clara Hicks;

County of Hidalgo; Hill Ditch; Francis M.

Hodges; Lettie

Page 9

F. Hunt; M. J. Jensen; M. L. Jensen; D. L. John-

son; F. E. Johnson; R. S. Johnson; A. L. Jones;

H. Jones, Sr., Estate; Martin & Pearson Ditci;

Martin & Pearson Irrigating Canal Company;

Arven Mortensen; T. J. Nations; G. O. Payne; C.

V. Peery; T. M. Peters; Dell M. Potter; Fred Pow-

ell; R. Richardson; Romney Brothers; Romney &

Lunt; Rucker Ditch; School District No. 30; J. M.

Smelley; A. F. Smith; The Estate of Spoon, Ira L.

Spoon, Adm.; A. G. Stevenson; W. R. Stevenson;

App. 9

Sunset Irrigating Canal Company; D. H. Thomp-

son; W. Plune Tibbets; H. P. Trainor; Virden

Ward; Ward & Courtney Dam Company; T. M.

Williamson; State of New Mexico;

Also, Phelps Dodge Corporation; Arizona

Copper Company;

Also, Morenci Water Company;

Also, Aztec Mutual Canal Company; James

Leroy McCarthy; Richard E. Geyler; Frank C.

Elwell.

Said action was had and taken in pursuance of those

certain five stipulations between the plaintiff and the

defendants above named through their solicitors of record,

on file herein, wherein and wherefrom it appeared that

said defendants and each of them had been named in this

action and amended complaint, as parties defendant

herein, through and by inadvertance, mistake and error,

and that their claims and rights, if any, were and are

outside the scope of said suit as same was and is outlined

and defined in the amended complaint herein, and that

they and each of them should be dismissed and eliminated —

from said cause, although some of them had filed their

answers setting up their claims and rights to the use of

certain waters from some of the tributaries of the Gila

River, and said answers were filed through mistake and a

misunderstanding as to the scope of said cause as outlined

and defined in plaintiffs said amended complaint. It was

agreed in said stipulations that the dismissal of said

defendants should be accomplished upon motion of the

plaintiff and Order of this Court as aforesaid, and that

said Order should provide as in fact it does, as made and

entered, of record herein that: said action and dismissal

should be without prejudice to said defendants and each of

App. 10

them and/or to any of the other parties in this cause, or to

any claim or rights to the use of water which said defen-

dants, or any of them, or said other parties or any of them,

now or hereafter may have, against the other or others,

and that said defendants, and each of them, should be left

as though they never had been named or made parties

defendant herein; which said action heretofore taken by

the Court in the premises, is hereby confirmed, and the

provisions herein recited in reference thereto are made a

part of this decree to protect their rights in that respect.

That, upon motion of the plaintiff, by Order of this

Court dated March 30, 1935, this suit and the amended

complaint were dismissed as to the following named

defendants, to-wit:

A. P. Angle; Arizona Hercules Copper Com-

pany; Josephine Burks; Simon Cisneros; Louis

Gilson; Gold Bullion Mining Company; Charles

J. Gross; John M. Hatfield; G. H. Head; London

Gila Mining Company; Theodore Lujan; Kathe-

rine S. Mellon; Luis Santos; and Manuel Tibbets;

Also, Frisco Placer Mining Company; Anna

M. Gale; A. A. Larona; Brotten Lunt; Jose San-

chez; William Whelin; Harry C. White; and the

White Mountain Lumber Company.

Said action having been taken for the reason that;

from said motion on file herein it appeared that said

defendants and each of them has no interest in the issues

of this action and that none of them were or are necessary

parties defendant; the action heretofore taken in these

premises is hereby confirmed.

That, upon motion of the plaintiff, by Order of this

Court dated March 30, 1935, this suit and the amended

App. 11

complaint were dismissed, without prejudice, as to the

following named

Page 10

defendants, to-wit:

Castilo Ditch; Thomas Crabtree; Ed Elrage;

Dale M. Garden; Jensen Brothers; J. B. Johns; F.

Vernon Jones; William L. Keppler; Randall Lunt;

Vernon Lunt; M. J. McClaren; Hugh McKeen;

William Milligan; Alfred Mortenson; Nichols &

Company; Tomas Ponce; Serano R. Sexton;

Ernest D. Shade; C. M. Short; Frank Shiver; A.

R. Snyder; S. Stewart; T. L. Stockton; J. A. Suy-

dam; Luther T. Sweeting; Miss E. A. Swofford; O.

F. Swofford; Bonnie Ulrage; J. F. Wardner; and

W. F. Willis;

said action having been taken, because it appeared from

said motion on file herein and the records; that said

defendants and each of them were brought into the action

by inadvertance and mistake and each was and is not a

necessary party to this action, for the reason that they

have no interests or that they are outside the scope of the

suit as defined in the amended complaint herein. The

action taken heretofore in these premises is hereby con-

firmed.

That at the same time and in the same order this suit

and amended complaint were dismissed as to the following

defendants, to-wit:

W. B. Barham; J. M. Biddle; Mary W. Brad-

shaw; Jackson Branaman; Martha W. Brockway;

Fred D. Carpenter; E. D. Chandler; Dessa Harbi-

son; Jim Harper; Jacob Helfenstein; A. S. Henry;

Mrs. Alice Huntsman; John A. Johnson; A. E.

App. 12

Keoler; T. A. Lonergan; Clara B. McFarland;

Gordon McMurray; William C. McNatt; R. B.

Maley; Martha M. Merrill; Estate of Lizzie B.

Murphy; W. F. Murphy, Sr., Administrator; John

Nash; Ansel Phelps; Georgiana Phelps; George

W. Sheerer; Chas. D. Stahiberg; Glodine Stahl-

berg; Phoebe E. Templeton; Estate of Jose

Vasquez, Charles F. Bennett, Administrator; Al-

bert Warren; Alice E. Nixon; Virginia Griffin;

Horace J. Johnson; Mary Johnson; Lula O. Lock-

erd; and John C. Swan;

said action having been taken and had, for the reasons

shown in said motion, to wit: that each of said defendants

had been brought in as parties defendant through inadver-

tance and mistake or that they had transferred their

interests to others who are parties defendant herein, and

they are necessary parties defendant herein. The action

heretofore taken in these premises is hereby confirmed.

That upon motion of the plaintiff, by Order of this

Court, dated March 30, 1935, this suit and the amended

complaint herein were dismissed, as to the following

defendants, to-wit:

Henry W. Blough; John F. Brown; Fred E.

Gack; John MacGregor Goodale; Frank E. Ham-

ilton; Frederick K. Kratzka; J. T. Lewis; James F.

McManis; George W. Morrell; John O’Brien;

Margaret T. Randall; Jennie Roberts; Earl F.

Smiley; Ole H. Smith; A. W. Sydnor; M. E.

Templeton; Bert Vidans; Fannie Wallrich; W. G.

Williams; S. H. Wynn;

said action having been taken and had, for the reasons

shown in said motion on file herein — as well as from the

records herein, that; said and every of the last named

parties are not necessary parties defendant herein; that

App. 13

their lands are embraced within and constitute a part of

the San Carlos Irrigation and Drainage District; that each

of them has entered into a contract with the United

States, in relation to his land and water rights therefor

and that because of said contractual relationship his lands

have been and are designated as a part of the United

States San Carlos Indian Irrigation Project; that their and

each of their interests have been and are represented in

this cause by said District and the plaintiff and that their

and each of their water rights have been and are set up

and provided for in this decree. The action taken hereto-

fore by the Court in these premises is hereby confirmed.

Page 11

That, upon motion of the plaintiff, by Order of this

Court on the 30th day of March, 1935, this suit and the

amended complaint were dismissed as to the defendants:

Estate of Della Tharp, Edward Tharp, Administrator;

Estate of James Tharp, Edward Tharp, Administrator;

said action was taken and had pursuant to said motion on

file herein and for the reasons therein given that; the

lands and water rights thereunto belonging were by said

parties covered into the Florence-Casa Grande Project by

contract with the United States, the plaintiff herein; that

their and each of their interests have been presented to

the Court by the Florence-Casa Grande Water Users

Association and their and each of their interests have been

and are represented herein by the United States; that they

are not necessary parties defendant in this action; that

their and each of their interests are and have been set up

and provided for in this decree and given their proper

place in the Priority Schedule, a part of this decree, which

said action is hereby confirmed.

App. 14

That, upon motion duly made, by Order of this Court

dated April 3, 1935, the Kennecott Copper Corporation, a

corporation, was made a. party defendant herein, by

substitution, as the successor in interest of the Nevada

Consolidated Copper Company and the Ray Consolidated

Copper Company. The action heretofore taken in these

premises is hereby confirmed.

That the following named defendants own land as

follows: Estate of Dora M. Clark, the NW1/4, Section 22,

Township 6 South, Range 7 East, Gila and Salt River Base

and Meridian; Margaret P. Brown, the SW1/4, Section 15,

Township 6 South, Range 7 East, Gila and Salt River Base

and Meridian; and H. H. McNeil, the N1/2? SE1/4, Section

9, Township 5 South, Range 9 East, Gila and Salt River

Base and Meridian; and Otis J. Baughn, 80 acres of land

in the N1/2? SW1/4 of Section 8, Township 6 South, Range

8 East, Gila and Salt River Base and Meridian; and that _

they and each of them in the past and prior to this decree, __

have made diligent and extensive efforts and have ex-

pended sums of money in an effort to secure water from

the Gila River for the irrigation of their and each of their

lands, but notwithstanding said efforts and expenditures,

they and each of them were and have been unable to make

use of said water upon their said lands and have not

acquired any right to the use of said water from the Gila

River upon their said lands, and that they and neither of

them has a right to use water from the said river for the

irrigation of their said lands as against the parties to this

cause.

App. 15

Page 12

That each of the parties named in the Schedule of_

Rights and Priorities set out below and made part hereof

(hereinafter for convenience often referred to as the

Schedule or Priority Schedule), in proper person or in the

representative capacity indicated, has acquired and owns

the right or rights accredited to him in said Schedule; that

the Gila River is the stream from which the water called

for under each of said rights is and may be diverted; that

the point of such diversion, the name or description of the

dam, canal, or other appliance through which said diver-

sion is accomplished and said waters are carried to the

lands through the irrigation of which said right has been

acquired, together with — as to individual defendants, and

plaintiff where the appropriation rights of others have

been conveyed to it as hereinafter further described — the

description of said lands and the number of irrigable acres

thereof in each quarter or quarter-quarter section, or lot or

lots as the case may be, to which said right applies, are as

stated in said schedule opposite the name of each of said

parties in appropriately designated columns thereof; that

the priority date of each of said rights is as stated for each

owner in the column ¢c< designated, and such owner is

entitled thereunder and as of the date of said priority to

divert from the natural flow of the stream, at the point of

diversion so designated and to carry and convey to, and

apply to beneficial use upon, said lands for the irrigation

thereof, during each irrigation season, a total amount of

water not exceeding 6 acre feet per each acre of said

lands, which said amount shall not be diverted from the

stream at any time during said season at a greater rate

App. 16

than one-eightieth (1/80) of a cubic foot per second for each

acre of said lands, except as hereinafter provided; that the

right of direct diversion from the natural flow of the

stream for each of said parties, therefore, may be readily

calculated; for the area then being irrigated, as follows:

No. of acres times 6 = Total allowable diversion in

acre-feet during each irrigation season;

No. of acres times 1/80 = Rate of diversion in cu-

bic feet per second which shall not be exceeded in

-making said draft;

provided, however, that the water commissioner hereinaf-

ter provided for, in order to take proper advantage of

sudden freshets or other periods of more plentiful natural

flow in the stream, may authorize and provide for, and as

to the lands of defendants above the San Carlos Reservoir

shall permit, when no injury will result to others not being

so accommodated, diversions therefrom under said rights

at a greater rate than 1/80 of a cubic foot per second, but

subject to the explicit condition that the total diversion for

the lands involved shall not exceed during the irrigation

season the said total of 6 acre feet per acre; that the right

of each of said parties, based upon the total area involved

in each instance, is stated in acre feet per irrigation

season, and in cubic feet per second (maximum rate of

diversion as aforesaid), opposite the names of said party,

respectively in the last two columns of said schedule; that

this right for each of said parties entitles him to a first and

prior call to the extent thereof upon the available natural

flow of the stream as against other whose rights as listed

in said Schedule bear later dates of priority than his own,

while others, when their rights have earlier dates of

priority than his, have a first and prior call to the extent

thereof upon said stream flow as against him; that each of

App. 17

said rights is gauged by and limited to the amount of

water which has been and can be beneficially diverted and

applied to the irrigation of said lands; that this quantity is

determined and adjudged herein to be the amount in acre-

feet per acre for the irrigation season stated above, which

shall include and be charged with all conveyance loss from

the point of diversion from the stream to the lands; that

said lands require that there be applied thereto, and

therefore diverted from the stream, somewhat larger

amounts of water in the hotter summer months of the

irrigation season than at any other times therein, of which

account is taken by providing herein for a considerably

larger diversion right than would be required at constant

even flow to produce 6 acre-feet per acre during each

irrigation season; that where the figures and data given

for a single water right priority are set opposite the names

of more than one defendant in said Schedule, each of the

same is deemed and held to have an undivided interest in

the whole there described under such mutual contractual

relations as may obtain between them, which are not

defined or determined in this decree; that certain of the

rights accredited to plaintiff in said Schedule may be

classified as rights by purchase in that they were acquired

by the United States by way of conveyances from the

owners of the private lands through the irrigation of which

they were acquired, said conveyances being made by way

of the “Agreement of Landowners to induce the Secretary

of the Interior to undertake the Florence-Casa Grande

Irrigation Project, and for the building and operation

thereof in case the same is declared feasible” and the

“Landowners Agreement with the Secretary of the Interior,

San Carlos Project, Act of June 7, 1924,” entered into by

the United States and such owners, which were executed

and put into effect under and in connection with the

App. 18

Florence-Casa Grande and San Carlos Projects; that these

rights, having priorities in great number, ranging from the

year 1868 to 1914 inclusive, are set down in their

Page 13

order in said Schedule and totaled for each year under the

name of the United States, with the description in each

instance of the lands through the irrigation of which they

were acquired by appropriation and beneficial use; also, in

an appropriate column in each instance the names of the

landowners making the conveyances, or their successors in

interest, made formal parties defendant herein, are set

down; all to the end that said rights may be identified and

preserved; that plaintiff, in accord with said agreements

and conveyances, is hereby authorized and empowered to

divert from the Gila River the waters called for under said

rights for use by irrigation upon the lands of the Florence-

Casa Grande and San Carlos Projects as hereinafter

further described; that the other rights of plaintiff, which

may be generally described as those owned by the United

States for and on account of the Indians of the Gila River

and San Carlos Indian Reservations and as reservations

and appropriations made by the United States for and on

account of the Florence-Casa Grande and San Carlos

Projects, are set down and outlined in their proper order in

said Schedule as a matter of convenience, but each of said

rights furthermore is specifically defined and decreed in

later Articles hereof; including the right of the United

States, as of the year 1924, to store the waters of the Gila

River in the San Carlos Reservoir, which is specifically

defined in Article VI and is of different character than the

rights directly to divert from the natural flow of the

stream, with which this Article of the Decree and the

Priority Schedule made part hereof primarily has to do;

App. 19

that certain of the rights of plaintiff, as same are set down

and referred to in said Schedule, do not accumulate, as is

specifically stated and described in the last paragraph of

Article VI of this decree; that also certain of the rights of

the Nevada Consolidated Copper Company, as same are

set down in said Schedule, do not accumulate, as is specifi-

cally stated in the first paragraph of Article IX hereof; that

as to all other rights to divert the waters of the Gila River

which are set down and defined in said Schedule, includ-

ing the so-called rights by purchase of the United States

(which for convenience here comes within the designation

“concern”), when rights of different priorities are ascribed

to the same person or concern, said rights as thus accred-

ited to that person or concern do accumulate, so that the

total amount of water in acre feet per season which can be

taken from the stream, under the priority of any certain

date and the priorities of previous dates (ascribed to that

person or concern in said Schedule), with the maximum

rate of diversion in cubic feet per second governing same,

may and shall be ascertained by adding together the

number of acre feet per season set down under each of said

priorities; that maximum rate at which same can be

diverted being also the sum of the maximum rates, in

cubic feet per second, given under each of said dates of

priority; that rights to divert the waters of the Gila River

are decreed to the various canal companies and are set

down under their names in the Priority Schedule as of

various dates of priority; that the description in each

instance of the lands through the irrigation of which said

rights were acquired by appropriation and beneficial use

and the names of the landowners or their successors in

interest, made formal parties defendant herein (and set

down—under the heading “PARTIES OWNING SAID

LANDS WHEN JURISDICTION ACQUIRED HEREIN”),

App. 20

whose beneficial application of water to said lands sup-

ported said appropriations are also listed under the names

of each of said canal companies, the amounts of water in

acre feet per season, with the maximum rates of diversion,

allowed for the irrigation of the various subdivisions of

said lands being given in the so-called individual columns

under the general heading “Diversion Right” in said

Priority Schedule; all to the end that the diversion rights

of said canal companies may be adequately defined, and

the individual rights of said defendant landowners to

maintain, arrange or contract for, under applicable stat-

utes and provisions of law, the diversion and carriage of

water from the stream to said lands under and in accord

with said rights may be identified and preserved; that the

irrigation season referred to in this Article of the Decree,

which shall as well apply to all rights adjudicated herein,

is hereby defined as and determined to be the period

beginning on January lst of each year and ending on

December 31st of the same year; that the Schedule above

referred to and made part hereof is as follows:

{tables of priority rights and holders]

Page 86

That plaintiff has and owns rights in the waters of the

Gila River, and in and to the use of said waters, as follows:

(1) The right on behalf of the Pima and other Indians

of the Gila River Indian Reservation, their descendants,

successors and assigns, to divert 210,000 acre feet of the

waters of the Gila River during each irrigation season,

from the natural flow in said river at the Ashurst-Hayden

App. 21

and Sacaton diversion dams — as of an immemorial date of

priority and to the extent that such waters are available

under said priority — at a rate of diversion not exceeding

437.5 cubic feet per second at any time during such season

for the reclamation and irrigation of the irrigable Indian

allotments on said reservation, which amount to 49,896

acres, as they now are or hereafter may be made, and of

the administrative area on said Reservation which

amounts to 650 acres, to the extent that the herein de-

scribed water right, which is sufficient for and limited to

the needs of 35,000 acres, will reclaim and irrigate the

same. The waters available under this right and priority

shall be divided and distributed to the lands of the Flor-

ence-Casa Grande Project as decreed and provided in

subdivision (3) of this Article.

(2) The right, on behalf of the Apache and other

Indians of the San Carlos Indian Reservation, their

descendants, successors and assigns, to divert 6,000 acre

feet of the waters of the Gila River, during each irrigation

season, from the natural flow in said river at diversion

points on said river within said reservation — or above the

eastern boundary thereof under such rights of way as may

now exist or be acquired therefor; due measures being

taken to avoid injuries to other water users by said last

mentioned diversions, — as of a date of priority of the year

1846 and to the extent that such waters are available

under said priority — at a rate of diversion not exceeding

12.5 cubic feet per second at any time during such season,

for the reclamation and irrigation of 1000 acres of the

irrigable lands within the said reservation (or in part or

wholly within the valley of the Gila River above the

eastern boundary of said Reservation, if lands are there

acquired by the United States for that purpose), situated

App. 22

in the County of Graham, State of Arizona, and more

particularly described as within said reservation and that

portion of the valley of the Gila River above the San Carlos

Reservoir and flow line thereof; that said water right,

however, if or when sanctioned by law, at the discretion of

the Secretary of the Interior and with the consent of the

San Carlos Irrigation and Drainage District expressed by

its board of directors, may be purchased by or for the

benefit of the San Carlos Project and used for said project

as other of that project’s stream flow right below the San

Carlos Reservoir are or may be used under this decree,

provided, however, that such right is and shall be treated

as a project right to which no individual or individual

lands shall have or assert an interest or priority as against

any lands given rights in the Priority Schedule; and

defendants, Gila Valley Irrigation District, Virden Irriga-

tion District and Franklin Irrigation District through their

boards of directors, having offered and agreed to facilitate

the aforesaid purchase of said water right so that it may

be transferred and used as aforesaid for the benefit of the

San Carlos Project as other of that Project’s stream flow

rights are or may be used below said reservoir under this

decree and to pay the United States therefor the sum of

Sixty-Two Thousand Five Hundred ($62,500.00) Dollars,

said payments to be made by each of said Districts, in the

proportion that the number of acres of land in said district

decreed water rights herein bears to the whole number of

acres of land in said three districts’ so decreed water

rights, and to pay said sum within two years from the

acceptance of said offer, if said offer shall be accepted

within five years from the date of this decree. Said offer,

however, to be considered as made by said districts only

when all requirements of Arizona law with regard to

making binding offers of such a character shall have been

App. 23

complied with, it is hereby decreed that if said offer is

made and accepted at said purchase price sum or at any

other sum agreed upon by the said three districts and the

United States, the said water right shall be transferred as

aforesaid for the benefit of the San Carlos Project, but, in

no event shall be used or usable or be asserted as against

the lands given rights in the Priority Schedule above the

San Carlos reservoir on account of which have been paid

the full proportionate per acre share of the cost of said

purchase.

(3) The right to divert 372,000 acre feet of the waters

of the Gila River, during each irrigation season, from the

natural flow in said stream at the Ashurst-Hayden and

Sacaton diversion dams, as of the date of priority of 1916,

and to the extent that such waters are available under

said priority — at a total rate of diversion not exceeding

775 cubic feet per second at any time during such season,

for the reclamation and irrigation of the 62,000 acres of

the irrigable lands of the so-called Florence-Casa Grande

Project, or its equivalent, more particularly described as

follows:

a. The aforesaid Indian allotments now or

hereafter made on the said Indian Res-

ervation, and the said administrative

area, amounting in the aggregate to

50,546 acres to the extent that thirty-

five sixty-seconds of the herein described

water right, which is sufficient for and

limited by the needs of 35,000 acres, will

reclaim and irrigate the same.

Page 87

b. 27,000 acres of land in the private own-

ership of White persons (also referred

App. 24

to herein as “White lands”) described as

follows: [tables of “White lands”]

Page 92

That in accord with the Agreement of Land Owners to

Induce the Secretary of the Interior to Undertake the

Florence-Casa Grande Irrigation Project, etc.’ entered into

between the owners of said privately owned lands and the

United States, it is hereby further specifically ordered,

adjudged and decreed that suitable devices for measuring

the flow of water available and susceptible of being di-

verted by the aforesaid dam or dams to the canals of the

said Florence-Casa Grande Project (now a part of the San

Carlos Project system) shall be maintained and daily or

more frequent measurements of said flow shall be made;

that the first 300 cubic feet per second or less of water

flowing in the river at the said dam or dams, available as a

whole under the several rights and priorities of plaintiff,

including its immemorial right described and set up in

subdivision 1 of this article and the so-called rights by

purchase, and susceptible of being diverted for the said

project, shall be divided and distributed, less deductions

for project canal losses as hereinafter provided, sixty and

six-tenths per centum thereof to the Indian lands of said

project and thirty-nine and four-tenths per centum to the

White lands thereof; that of the next 300 second-feet of

water or less thus flowing and available, less deductions

on account of losses as aforesaid, fifty-one and seven-

tenths per centum thereof shall be apportioned to the said

Indian lands, and forty-eight and three-tenths per centum

thereof to White lands; that all water available as afore-

said in excess of said 600 second-feet shall be divided, less

deductions on account of losses as aforesaid, fifty-six and

one-tenth per centum to said Indian lands and to said

App. 25

privately owned lands, forty-three and nine tenths per

centum, except that during periods of high water when it

shall be possible and practicable to divert water for the

use of the Indian lands within said project, or some of

them, by means of the Sacaton Dam, the entire amount of

water diverted for the said project by the said Ashurst-

Hayden Dam shall be used for the irrigation of privately

owned lands and of such of said Indian lands as cannot be

adequately supplied from said Sacaton Dam; that fur-

thermore the amounts of water thus apportioned to the

White lands within said project shall be distributed to said

lands in the following order:

(a) Certain of said lands to the extent of

some 9,752.83 acres together with 790 acres in

Sections 1 and 2, Twp. 5 S., Range 8 E., G. and

S.R.B. and M., being identical with those tracts

which are described in the Schedules of Rights

and Priorities set out under Article V hereof and

identified in said article as applying to the so-

called rights by purchase of plaintiff, shali have a

call upon the waters available under such appor-

tionment in the order of their priorities as set out

in said schedule.

(b) The remainder of said lands, amounting

to some 17,247.17 acres, shall have the next

three successive calls upon such waters as are

available under such apportionment and in the

following order:

[table of priorities]

Page 98

agents in dividing the waters of the said Flor-

ence-Casa Grande Project shall see that the

App. 26

losses of water in the whole system of project ca-

nals (now a part of the San Carlos Project Sys-

tem) are shared as equitably as may be to the

end that, with respect to such losses, no water

right under the project shall enjoy any advantage

of location, position or otherwise over any other

project water right; but losses occurring in the

Indian and private canals leading from said pro-

ject canals shall be disregarded in the division of

water hereinabove provided for; and furthermore

whenever the quantity of water diverted into the

canals of said project shall, in the aggregate, be

so small that, after deducting the losses of trans-

mission in the project canals and then dividing

the residue between the Indian lands and the

lands in private ownership as hereinabove pro-

vided for, the share allotted to the Indian rights

would be too small to reach the Indian reserva-

tion, the Secretary of the Interior, or his agent in

charge of said project, shall permit all of said wa-

ter to be applied to the irrigation of privately

owned lands in accordance with their priorities.

(4) The right to divert 603,276 acre feet of the water

of the Gila River, during each irrigation season from the

natural flow in said stream at the Ashurst-Hayden and

Sacaton Dams above described — as of the date of priority

of not later than June 7, 1924 (and for the purposes of this

decree and for them only as of said date) and to the extent

that such waters are available under said priority — at a

total rate of diversion not exceeding 1256.5 cubic feet per

second at any time during such season, for the reclamation

and irrigation of the 100,546 acres of the irrigable lands of

the San Carlos Project and for supplying water to the

State of Arizona, and towns, villages and municipalities of

that state, and federal agencies, as provided in the Act of

March 7, 1928, and in the so-called Repayment Contract

App. 27

bearing date the 8th of June, 1931 said 100,546 acres of

project lands being more particularly described as follows:

(a) 49,896 acres of land within the Gila

River Indian Reservation which have been, or

may be allotted to individuals among the Indians

thereof (also referred to herein as “Indian

Lands”), together with 650 acres within said res-

ervation comprising the School Farm, Agricul-

tural Experiment Station and Administrative

Area.

(b) 50,000 acres of land in private owner-

ship of white persons (also referred to herein as

“White Lands”), made up of such White Lands

designated to come into the San Carlos Project

by order of the Secretary of the Interior of April

25, 1928, and August 9, 1934, said designated

lands being described as follows:

Page 105

(5) The right, as of the date of priority of not later

than June 7, 1924, — and for the purpose of this decree and

for them only as of said date — to store the waters of the

Gila River in the San Carlos Reservoir of the aforesaid

San Carlos Project by means of the Coolidge Dam (said

Reservoir and Dam being situate within the San Carlos

Indian Reservation) to the extent of the full 1,285,000

acre-feet capacity of said Reservoir at all times when said

waters are available above said dam for such storage

under the aforesaid priority; and the right in that relation

to accomplish and control the release from said reservoir

of the waters so stored and thus reduced to ownership, and

to conduct the same down the channel of the Gila River to

the Ashurst-Hayden and Sacaton diversion dams of the

San Carlos Project and there to recapture and divert, and

App. 28

control the diversion of, the same by means of said dams

for conveyance in the canals leading therefrom to the

above described 100,546 acres of the lands of said Project

for the reclamation and irrigation thereof, and for the

supplementation of amounts available therefor at said

dams from the natural stream flow under plaintiffs rights

as same are decreed herein, and for State and Federal

purposes under act of March 7, 1928 as hereinbefore

described.

(6) The right, as against and only against the parties

to this cause, to divert from the Gila River 17,950 acre feet

of water, — for the irrigation of 2992.5 acres of Indian lands

at the Gila Crossing District on said Reservation — each

irrigation season at a rate of diversion not exceeding 37.4

cubic feet per second of time, from the waters occurring or

recurring in said river beginning at the point where the

Southern Pacific Railway crosses said river in Section 13,

Township 3 South, Range 4 East of Gila and Salt River

Base and Meridian or between said point and a point one

hundred feet above where the Salt River empties into the

Gila River, at the diversion points on said reservation as

now or hereafter located, as for the following dates of

priority:

For 954 acres of said lands January 1, 1873.

For 587 acres of said lands January 1, 1876.

For 660 acres of said lands January 1, 1877.

For 139 acres of said lands January 1, 1900.

For 58.5 acres of said lands January 1, 1903.

It is further provided that water rights with the

priorities fixed as aforesaid are for the irrigation of said

Gila Crossing Indian lands, but subject at all times, to all

App. 29

rights on said Gila River above said point hereinabove

described, and provided also that said rights are subject to

the right of the San Carlos project, to divert and use

return flows, or water otherwise occurring in the river

above said point and the right of said project to pump and

otherwise interfere with and control the return flow from

the lands within said project.

That certain of the foregoing rights, as listed under

items (1), (3) and (4) above are inclusive one of the other so

that diversions thereunder do not accumulate, and the

amounts in acre feet per season and cubic feet per second

stated in the 3rd item include those given in the Ist and

those stated in the 4th item include those given in the lst

and 3rd; in each instance representing the total diversion

allowable under that priority and those prior thereto as

described in said items.

VII

That all Indian lands and all white lands now or

hereinafter designated by the Secretary of the Interior as

within the San Carlos Project and under said San Carlos

Reservoir shall be entitled to share equally in all of the

stored and pumped water of said Project in so far as that

shall be physically feasible, and said lands shall share

equally in all of the water of said Project of every nature

as long as the stored and unstored water supply for said

Project shall be sufficient for Project needs, and as far as

that shall be physically feasible; but when, through lack of

stored and pumped water, there shall be an insufficient

supply of water for all of the lands of said Project lying

under said reservoir, which condition or fact shall be

determined by the Secretary of the Interior or his duly

App. 30

authorized agent, the lands so situated, in addition to

their proper share of such stored and pumped waters as

may be available to the Project, shall be entitled to and

have apportioned to them the unstored flow of the Gila

River which is available as a whole, and susceptible of

being diverted, for the Indian and White lands of the

aforesaid Florence-Casa Grande Project together with the

790 acres in Sec. 1 and 2 T.5S., R. 8 E., G. and S.R.B. and

M., hereinbefore mentioned, under and in pursuance of the

various rights and priorities of the United States decreed

herein for said lands, as follows, to-wit: said flow shall be

divided between said Indian and White lands and distrib-

uted to such lands, whether the same shall be also in-

cluded in the San Carlos Project or not, in accordance with

the apportionment and division ordered and decreed in the

third subdivision of Article VI hereof, and any surplus

which may remain and be available in said river, under

the priorities of plaintiff, for other lands (beyond those of

the Florence-Casa Grande Project and said 790 acres)

included in San Carlos Project under the priorities of

plaintiff and provisions of this decree, shall first go to such

of the Indian Lands in the San Carlos Project, and then in

equitable proportion to such of the private and public

lands thereof as are not also included in the Florence-Casa

Grande Project and said 790 acres.

Page 106

VIII -

That the diversions of water from the Gila River by

the so-called upper valleys defendants (parties defendant

to whom rights to divert water from the Gila River at

points above the San Carlos Reservoir are decreed herein),

App. 31

comprising the defendant canal companies named below,

with the parties defendant named in the Priority Schedule

and attached tables who are decreed rights through the

canals of said companies and are served thereunder, and

certain individual parties defendant who are accredited

with rights to divert directly from the stream through

private ditches, to-wit: '

Albert Canal Company, Billingsley Exten-

sion Canal Company, Black & McClerskey Canal

Company, Brown Canal Company, Colmenero

Canal Company, Colvin-Jones Canal Company,

Cosper & Windham Canal Company, Cosper &

Windham Extension Canal Company (Under con-

tract whereby Cosper & Windham Canal Com-

pany makes actual diversion) Curtis Canal

Company, Dodge-Nevada Canal Company, Dun-

can Canal Company, Fort Thomas Consolidated

Canal Company, Fourness Canal Company, Gra-

ham Canal Company, Moddle Canal Company,

Montezuma Canal Company, San Jose Canal

Company, Sexton Canal Company, Shriver Ditch

Company, Smithville Canal Company, Sunflower

Canal Company, Sunset Canal Company, Tidwell

Canal Company, Union Canal Company, Valley

Canal Company, York Canal Company, York Cat-

tle Company;

R. H. Angle, J. H. Brown, T. D. Burton, W. C.

Craufurd, J. W. Foote, R. C. Gilleland, J. H.

Henderson, C. C. Hester, F. E. Ross, R. Sexton,

Laura Short;

and/or their predecessors in interest, for the irrigation of

the lands described in said Priority Schedule made part of

Article V hereof; since their inception have been made

under rights which were and are junior and subject to

certain extensive rights of plaintiff to divert the waters of

App. 32

said stream at points below the diversions of said defen-

dants and also below the San Carlos Reservoir, which said

rights of plaintiff are set down and referred to in said

Priority Schedule, but are further identified and particu-

larly described in Article VI and VII hereof, it being

evidenced thereby that the earliest right of plaintiff is

prior in time to all and every of the rights of said defen-

dants, and certain of plaintiffs other rights are prior in

time to certain of the rights of said defendants; that,

however, plaintiff and said defendants, in recognition of

the desirability of making it practicable for said defen-

dants to carry on the irrigation of said upper valley lands

to the extent to which the areas to which their said rights

apply heretofore have been irrigated and so that the said

San Carlos Act shall inure in part to their benefit and this

suit may be compromised and settled, have agreed that

the following provisions shall be and they are hereby

embodied in this decree, which said provisions in turn, and

in so far as they affect the other parties in this cause, shall

inure to the benefit of and be binding upon them, to-wit:

(2) That on the first day of January of each Calendar

year, or as soon thereafter as there is water stored in the

San Carlos Reservoir, which is available for release

through the gates of the Coolidge Dam for conveyance

down the channel of the Gila River and for diversion and

use on the lands of the San Carlos Project for the irriga-

tion thereof, then the Water Commissioner, provided for

herein, shall, to the extent and within the limitations

hereinafter stated, apportion for the ensuing irrigation

year to said defendants from the natural flow of the Gila

River an amount of water equal to the above described

available storage, and shall permit the diversion of said

amount of water from said stream into the canals of said

App. 33

defendants for the irrigation of said upper valleys lands in

disregard of the aforesaid prior rights of plaintiff used on

lands below said reservoir; the diversion of said amount of

water by said defendants to be in accord with the priorities

as between themselves stated in said Priority Schedule

and for the irrigation of the lands covered by the rights

accredited to said defendants in said Priority Schedule and

the quantity of water permitted to be taken by said defen-

dants in disregard of prior rights of the United States

below is in addition to and not exclusive of the rights of

said defendants to take from the stream in the regular

order of their priorities as shown by the Priority Schedule,

but of course within the duty of the water limitations of

this decree; that if and when at any time or from time to

time in any year, water shall flow into said reservoir after

said date of first apportionment and shall be stored there

and become added to the available stored water in said

reservoir, the said commissioner shall make further and

additional apportionments to said defendants of the

natural flow of said stream as the same is available at the

diversion points of said defendants, which said apportion-

ments shall in turn correspond with and be equivalent in

quantity to the amount of such accessions or newly avail-

able stored water supply; that in calculating apportion-

ments of the stored water supply the Water Commissioner

shall make appropriate deductions for losses for evapora-

tion, seepage or otherwise that may be suffered between

the time of the apportionment and that of the diversion of

a corresponding quantity of water

Page 107

from the stream; that such apportionments, corresponding

with net accessions during each annual period after first

App. 34

apportionment, shall be made by said Water Commis-

sioner at least as frequently as once per calendar month

(provided accessions to stored supply have occurred during

that period) and at such more frequent intervals as the

conditions in his judgment may demand — his decisions in

these regards to be subject to summary review by the

Court as provided in Article XII hereof — and said Water

Commissioner shall see to it that his said apportionments,

when made, forthwith shall be placed of record herein and

so posted or published as to inform all interested parties in

that regard with reasonable promptness and despatch

[sic]; it being herein explicitly provided that no apportion-

ment or apportionments, made during any calendar year,

shall carry over or be available in any manner for the

succeeding year; that the diversions made by said defen-

dants of the natural flow of the Gila River thus appor-

tioned to them in disregard of the said prior rights of

plaintiff shall be regulated by the Water Commissioner

(under the authority and powers given him by this decree

and/or by such further orders of the Court as may be made

in that relation) in accord with the rights and priorities

accredited to each of said defendants in said Priority

Schedule, provided always that such diversions shall be

limited to the amount of water then apportioned, as

aforesaid, and in any event, during each irrigation season,

do not and shall not exceed the total amount of water

called for under the right accredited in said Priority

Schedule to any given defendant, namely; 6 acre feet per

acre for the irrigation season as defined in Article V

hereof; and provided further that the drafts on the stream

by the upper valleys defendants shall be limited to a

seasonal year diversion which will result in an actual

consumptive use from the stream of not to exceed 120,000

acre feet of water; said consumptive use made in any

App. 35

seasonal year shall be determined by adding the recorded

flows at a gauging station located in the Gila River at Red

Rock Box Canyon above the heading of the Sunset Canal

in New Mexico and a gauging station located in the San

Francisco River immediately above its confluence.with the

Gila River and deducting from said sum the recorded flows

at a gauging station located on the Southern Pacific

Railway bridge crossing the Gila River near Calva, Ari-

zona; and the Water Commissioner shall determine what

diversions are permissible and reduce diversions in the

inverse order of their priorities when and to the extent

necessary to accomplish the aforesaid result. The aforesaid

measurements shall include the whole flow of the stream,

including floods, at the three points of measurement, and

no allowance shall be made for accretions or additions to

the flow between the point of measurement at Red Rock

Box Canyon, and the confluence of the Gila and San

Francisco Rivers, and in turn between the confluence of

the Gila and San Francisco Rivers, and the aforesaid

gauging station at the Southern Pacific Railway bridge.

Said method of measurement is adopted as sufficiently

accurate for practical purposes and as better suited for

administering this decree than any more refined method of

determining actual consumptive use.

(3) Upon agreement made by the owner of any right

set forth in the Priority Schedule for land in the Safford

Valley water may be diverted by the owner of land in the

Duncan Valley within the duty of water in this decree set

forth and within the apportionment of water for said

Duncan Valley land in disregard of such Safford Valley

right or rights, and that such waiver shall in no way

deprive the Safford Valley lands thus waiving of their full

apportionment of water herein provided for based on

App. 36

water stored in the San Carlos Reservoir or their full right

to take from the stream, in accordance with their priority

and within the duty of water fixed by the decree as against

water rights of the United States held on account of the

San Carlos Project, but the right of the United States to

insist upon its priorities as defined and modified herein as

against Duncan Valley Lands shall not be abridged by this

provision,

(4) That water released at the will of the plaintiff

and for the purposes of the plaintiff from the San Carlos

Reservoir at any time after the date of this decree other

than for the proper irrigation of 8C,000 acres of land or its

equivalent in the San Carlos Project, shall be considered

as stored in the San Carlos Reservoir at and after the date

of such releases, and available as a basis for the above

described apportionment of the natural flow to said defen-

dants as it would be if such withdrawals had never been

made.

(5) PROVIDED ALWAYS, that if by reason of lack of

available storage in the San Carlos Reservoir no appor-

tionment of the natural flow of said river is or can be made

available to said defendants, then the diversions of said

defendants, of or as soon as apportionments previously

made to them have been consumed, shall no longer be

made in disregard of the prior rights of plaintiff below said

San Carlos Reservoir, but shall instead be made under and

in accord with the rights and priorities set down in Article

V, and the Priority Schedule made part hereof, and Article

VI of this decree to-wit: in accord with their several

priorities as same are set down in said Priority Schedule

and subject to the prior rights of plaintiff as same are

referred to therein and further described in Article VI of

this decree.

App. 37

Page 108

(1) That the defendant Kennecott Copper Corpora-

tion shall be entitled, as of the dates of priority set down in

the Priority Schedule made part of Article V hereof, for

industrial, municipal, domestic and related beneficial

purposes, to divert from the underground waters of the

Gila River by means of its pumps, as same are or may be

located within the lands described in said Priority Sched- —

ule under the heading “Point of Diversion,” during the

annual period beginning January lst of each year, the

amounts of water stated in said schedule, at the rate of

diversion in cubic feet per second there given; subject,

however, to the proviso that the total amount of water

diverted and maximum rate of diversion, under the rights

for such purposes accredited to said defendant in said

Priority Schedule as of the priority dates of 1878, 1879,

1880, 1884, 1885, 1887, 1890, 1895, 1906, 1908, and 1909,

shall not exceed the quantity of water in acre feet per

annum or rate of diversion in cubic feet per second stated

for the right of 1909, to wit: 16,221 acre feet and 22.22

cubic feet per second; that the rights for industrial, mu-

nicipal, domestic and related purposes accredited to said

defendant as of the dates of priority named below were

first initiated, and thereafter perfected, by the diversion

and application of the waters of the Gila River, through

canals leading from the stream, to the irrigation of those

certain acreages of the lands described below which are set

down opposite said dates of priority, which said dates

respectively represent the year in which said acreages

were first irrigated, to-wit:

App. 38

Date of Priority NumberofAcres Area Containing Lands

Thus Irrigated

1878 65.00 SE1/4 and SE1/4

SW1/4, Section 9;

1879 95.00 $1/2? SW1/4, Section

10;

1880 130.00 NW1/4 SW1/4, 81/2?

SW1/4 and SW1/4

SE1/4, Section 14;

1884 165.00 SE1/4, NE1/4 and

NW1/4 Section 15;

1885 60.00 NE1/4 Section 16; and

1887 60.00 N1/2 NW1/4 and N1/2

NE1/4 Section 23;

1890 10.00

1895 40.00 ~

1906 15.00

1908 153.00 All in Township 5

South, Range 15 East

of the Gila and Salt

River Base & Meridian

That tL. use for irrigation under said rights, when the

pumps and plant of said defendant were put in operation

in the year 1909, was changed and transposed into uses

for industrial, municipal, domestic and related purposes,

and the waters called for under said rights and priorities,

or so much thereof as was available, since have been

diverted from the stream or the underground waters

thereof by means of the pumps of said defendant and

continuously and beneficially applied to said purposes;

App. 39

(2) That the requirements of said defendant each

year for the above described purposes demand that it

divert from the underground waters of the Gila River, in so

far as same can be made available in that relation, at the

continuous rate of ten thousand gallons per minute, or

22.22 cubic feet per second; same being equivalent by

volume measurement to a maximum of 16,221 acre feet

per annum; that prior to the construction of the San

Carlos Reservoir and the storage of water therein the

natural flow of the Gila River at and/or in the vicinity of

the reduction plant and: pumps of said defendant main-

tained an underground water plane, which when pumped

from to meet the said requirements of defendant, had

averaged an approximate minimum elevation, as gauged

at said defendant’s test well at that place, of 1920 feet

above sea level (Nevada Consolidated Copper Company

datum) and an approximate maximum elevation of 1930

feet above sea level (datum idem); that said diversions by

said defendant then were, and since to the extent under-

taken have been, made under rights which were and are

junior and subject to certain extensive rights of plaintiff to

divert the waters of the Gila River at points below the

diversions of said defendant, and also below the San

Carlos Reservoir, which said rights of plaintiff

Page 109

are set down and referred to in Article V hereof and the

Priority Schedule included therein, and further defined in

Article VI and VII hereof, it being evidenced hereby that

the early right of plaintiff is prior in time to all and every

of the rights of said defendant and certain of plaintiff’s

other rights are prior in time to certain of said defendant’s

rights and thereby are credited with dates of priority earlier

than those of said defendant; that, however, plaintiff and

App. 40

defendant by way of consent hereto, in recognition of the

desirability of making it practicable for said defendant to

continue and further carry on its operations to the extent

of its aforesaid requirements and so that this suit may be

compromised and settled, have agreed that the following

provisions shall be embodied in this decree, which said

provisions in turn, and in so far as they affect the other

parties in this cause, shall inure to the benefit of and be

binding upon them, to-wit:

(3) That said defendant shall be entitled to divert, by |

means of its said pumps as they now exist or may be

replaced, so much of the underground waters of the Gila

River as may be available at its said pumps and as will

meet its said requirements — but not to exceed the amount

of 16,221 acre feet during each annual period reckoning

from January Ist of each year as aforesaid, and limited to

a maximum rate of diversion of 10,000 gallons per minute,

viz. 22.22 cubic feet per second — in disregard of the said

prior diversions rights of plaintiff below said San Carlos

Reservoir as same are set out and defined in this decree as

aforesaid; that if during those periods when no appreciable

releases of water from the San Carlos Reservoir are being

made into the channel below the Coolidge Dam, the said

diversions of defendant by means of said pumps (limited to

the amounts required for beneficial application to the

above described industrial, municipal, domestic and

related purposes and in any event to the said 16,221 acre

feet per year and 22.22 cubic feet per second) shall cause

the pumping water plane to fall below 1920 feet above sea

level, as gauged at said test well of defendant (Nevada

Consolidated Copper Company datum), or some other

mutually agreed upon point and datum, then, if there is

any natural flow in the Gila River at the point where said

App. 41

stream enters the San Carlos Reservoir, so much thereof

(or so much as is available if the amount is insufficient) as

will bring the level of said pumping water plane, as

gauged at said test well of defendant, or other point

aforesaid, to the average of the approximate maximum

and minimum elevations aforesaid to wit: 1925 feet above

sea level (datum idem), will be allowed to flow through

said reservoir into the channel below ~ if the storage level

in said reservoir is high enough physically to permit its

release through the Coolidge Dam — said operations to be

of simultaneous character in that releases through said

Coolidge Dam, equivalent to the natural flow entering the

reservoir or such portion thereof as may be sufficient for

the above described purpose, shall be made forthwith

when it is determined (mutually by the plaintiff and

defendant, or in case of disagreement by the Water Master,

whose decision may be reviewed as provided in Article XII

hereof) that the pumping water plane, under the condi-

tions above described, has fallen below the 1920 foot level

aforesaid; that such releases of natural flow through the

Coolidge Dam shall be accomplished so as to make the

most practical and workmanlike use of the amount avail-

able for the purposes thereof; taking into consideration the

vital necessity of avoiding in so far as possible the waste of

water into the stream below the gravels in which the

pumping water plane is being maintained;

(4) That the diversions of water from the Gila River

by said defendant and its predecessors in interest for the

irrigation of the lands described in the Priority Schedule

for which said defendant is accredited rights for irrigation

as of the dates of priority of 1908, 1916, and 1926, since

their inception have been made under rights which were

and are junior and subject to those certain and extensive

App. 42

rights of plaintiff to divert the waters of said stream at

points below the said diversions of defendant; which said

rights of plaintiff are set down and referred to in Article V

hereof and the Priority Schedule included therein and are

further defined in Article VI and VII hereof; it being

evidenced thereby that the early right of plaintiff is prior

in time to all and every of the rights of said defendant and

certain of plaintiff's other rights are prior in time to

certain of said defendant’s rights, and thereby are accred-

ited with priorities which are earlier than the aforesaid

rights of defendant; that, however, plaintiff and defendant,

by way of consent hereto and in recognition of the desir-

ability of making it practicable, in so far as possible, for

said defendant to carry on the irrigation of its said lands

to the extent of the acreages to which its said rights of

1908, 1916 and 1926 apply, and so that this suit may be

compromised and settled, have agreed that the following

provisions shall be embodied in this decree, which said

provisions in turn, and in so far as they affect the other

parties in this cause, shall inure to the benefit of and be

binding upon them, to-wit:

Page 110

(5) That when, under the rule and method of appor-

tionment stated in Article VIII of this decree, there is

apportioned to the so-called upper valleys water users

amounts of water from the natural flow of the Gila River

corresponding with the available storage in the San Carlos

Reservoir, then there also shall be apportioned to the

defendant Kennecott Copper Corporation, from the natu-

ral flow of said river as hereinafter defined, for the irriga-

tion of its said lands, an amount of water per acre thereof

corresponding with the amount per acre apportioned

to said upper valleys as aforesaid; and thereupon, said

App. 43

defendant shall be entitled to divert — in disregard of the

said prior diversion rights of plaintiff below as same are

set out and defined in this decree as aforesaid — at the

points of diversions and by means of the ditches ascribed

to it in the Priority Schedule, so much of the natural flow

of the Gila River, limited always to the amount of water

then apportioned to it as aforesaid, as can be beneficially

applied to the irrigation of the lands to which said rights

apply; said diversions as of course to be limited in any

event to the amounts of water in acre feet per irrigation

season and rates of diversion in cubic feet per second

stated for said rights in the Priority Schedule; that in as

much as the waters flowing in the Gila River at defen-

dant’s said points of diversion, during a great portion of

the irrigation season, will be made up in large measure of

stored water which has been released from the San Carlos

Reservoir and is being piloted down the stream channel to

the diversion dams and distributing canals of the San

Carlos Project, the natural flow available as aforesaid to

said defendant, under the limitations of said apportion-

ment, shall be gauged by and deemed to correspond with

the natural flow of the Gila River and San Carlos River at

the points where said streams enter the San Carlos

Reservoir, plus such contributions thereto between the

Coolidge Dam and said diversion points of defendant as

may occur, but subject to such drafts upon such total as

may be made by owners of rights of diversion under this

decree prior to said rights of defendant (if any there are)

between said Coolidge Dam and said diversion points of

defendant.

(6) PROVIDED ALWAYS, that the foregoing provi-

sions of this Article IX are hereby explicitly made subject

to the proviso that whenever under Article VIII hereof, by

App. 44

reason of lack of available storage in the San Carlos

Reservoir and the consumption of previous apportion-

ments thereunder, no apportionment of the natural flow of

said river is or can be made available to the so-called

upper valleys defendants in disregard of the prior rights of

plaintiff below said reservoir, and therefore diversions by

said defendants and plaintiff are required to be made

under and in accord with the rights and priorities set

down in Article V (and the Priority Schedule therein) and

VI of the decree, then the diversions of defendant, as

against all the other parties in this cause, whether for

industrial, municipal, domestic and related purposes as

described in subdivisions (1) to (3) above — or for irrigation

as described in subdivisions (4) and (5) if or when its

apportionment in that relation also has been consumed —

shall be subject to and be made in accord with its priorities

as same are stated in the Priority Schedule and not

otherwise, saving and excepting only that its diversions for

said industrial, municipal, domestic and related purposes

as against plaintiffs prior rights of diversion below shall

still be regulated and controlled as provided in subdivi-

sions (2) and (3) of this Article; subject to the further

proviso, however, that the natural flow of the Gila River as

measured where it enters the San Carlos Reservoir, or

drafts upon it in conformity with priorities against later

rights above, will not be available in any event below said

reservoir unless the storage level therein is sufficiently

high to permit its release through the Coolidge Dam. It is

further provided that the pumped diversions of said

defendant when being made under subdivisions (2) and (3)

of this Article, at times of greater peak loads, may exceed

by 10% the rate of 22.22 cubic feet per second stated

above, if water therefor is available at said pumps, but

that the total diversions for any year (January lst to

App. 45

December 31st inclusive) in such event shall still be

limited to 16,221 acre feet.

Page 111

(1) That the diversions of water from the Gila River

by defendants Joseph J. Anderson, Grady L. Herring and

T. H. B. Glasspie, and their predecessors in interest for the

irrigation of the lands described in the Priority Schedule

made part of Article V hereof, for which said defendants

are accredited rights for irrigation as of the dates of

priority named in said schedule, since their inception have

been made under rights which were and are junior and

subject to those certain and extensive rights of plaintiff to

divert the waters of said stream at points below the said

diversions of defendants; which said rights of plaintiff are

set down and referred to in Article V hereof and the

Priority Schedule included therein and are further identi-

fied in Articles VI and VII hereof, and thereby are accred-

ited with priorities which are earlier than the aforesaid

rights of defendants; that, however, plaintiff and said

defendants, by way of consent hereto and in recognition of

the desirability of making it practicable in so far as possi-

ble for said defendants to carry on the irr’ zation of their

said lands to the extent of the acreages to which their said

rights apply and so that this suit may be compromised and

settled, have agreed that the following provisions shall be

embodied in this decree, which said provisions in turn, and

in so far as they affect the other parties in this cause, shall

inure to the benefit of and be binding upon them, to wit:

(2) That when, under the rule and method of appor-

tionment stated in Article VIII of this decree, there is

App. 46

apportioned to the so-called upper valleys water users

amounts of water from the natural flow of the Gila River

corresponding with the available storage in the San Carlos

Reservoir, then there also shall be apportioned to said

defendants, from the natural flow of said river as hereinaf-

ter defined, for the irrigation of their said lands, an

amount of water per acre thereof corresponding with the

amount per acre apportioned to said upper valleys as

aforesaid; and thereupon; said defendants shall be entitled

to divert — in disregard of the said prior diversion rights of

plaintiff below as same are set out and defined in this

decree as aforesaid — at the points of diversion and by

means of the ditches ascribed to them in the Priority

Schedule, so much of the natural flow of the Gila River,

limited always to the amount of water then apportioned to

them as aforesaid, as can be beneficially applied to the

irrigation of the lands to which their said rights apply;

said diversions as of course to be limited in any event to

the amounts of water in acre feet per irrigation season and

rates of diversion in cubic feet per second stated for said

rights in the Priority Schedule; that in as much as the

waters flowing in the Gila River at defendants’ said points

of diversion, during a great portion of the irrigation

season, will be made up in large measure of stored water

which has been released from the San Carlos Reservoir

and is being piloted down the stream channel to the

diversion dams and distributing canals of the San Carlos

Project, the natural flow available as aforesaid to said

defendants, under the limitations of said apportionment,

shall be gauged by and deemed to correspond with the

natural flow of the Gila River at the point where said

stream enters the San Carlos Reservoir, plus such contri-

butions thereto between the Coolidge Dam and said

diversion points of defendants as may occur, but subject to

App. 47

such drafts upon such total as may be made by owners of

rights of diversion under this decree prior to said rights of

defendants (if any there are) between said Coolidge Dam

and said diversion points of defendants.

‘ (3) PROVIDED ALWAYS, that the foregoing provi-

sions of this Article X are hereby explicitly made subject to

the proviso that whenever under Article VIII hereof, by

reason of lack of available storage in the San Carlos

Reservoir and the consumption of previous apportion-

ments thereunder, no apportionment of the natural flow of

said river is or can be made available to the so-called

upper valleys defendants in disregard of the prior rights of

plaintiff below said reservoir, and therefore diversions by

said defendants and plaintiff are required to be made

under and in accord with the rights and priorities set

down in Article V (and the Priority Schedule therein) and

VI of the Decree, then the diversions of the defendants

above named, as against all the other parties in this cause

— if or when their apportionment in that relation also has

been consumed — shall be subject to and be made in accord

with their priorities as same are stated in said Priority

Schedule and not otherwise; subject to the further proviso,

however, that the natural flow of the Gila River, as meas-

ured where it enters the San Carlos Reservoir, will not be

available below said reservoir on occasions when the

. storage level therein is not sufficiently high to permit its

release through the Coolidge Dam.

Page 112

That the lands within the Gila River watershed for

the irrigation of which rights are decreed herein are arid

App. 48

or semi-arid in character and require irrigation in order

that crops of value may be produced thereon; that except

as herein specifically provided no diversion of water from

the natural flow of the stream into any ditch or canal for

direct conveyance to the lands shall be permitted as

against any of the parties herein except in such amount as

shall be actually and reasonably necessary for the benefi-

cial use for which the right of diversion is determined and

established by this Decree, to-wit: shall be made only at

such times as the water is needed upon their lands and

only in such amounts as may be required under the

provisions hereof for the number of acres then being

irrigated; that in cases where by this Decree water is

allowed to be diverted by and through any ditch by the

owner thereof for another party, the terms of the contrac-

tual relations existing between them are not intended to

be determined herein; that whenever the total area under

a particular canal is decreed more than one water right,

each having the same or different priorities or in its

different parts having different rights and priorities, the

total area may have used upon it all of its several rights in

the order of their priorities, subject only to the require-

ment that no greater net draft on the stream be made than

if each right in the order of its priority were used only on

the particular lands for which it was originally acquired or

reserved; that rotation, which is a well known, recognized

and effective practice in irrigation administration (consti-

tuting in effect the combining of flows allowed to be

diverted from a given stream under two or more rights so

as to provide for the alternate use of more adequate

irrigation heads as between neighboring or other ditches

taking from such stream), shall be permitted at «il times

and shall be required whenever necessary in order to

obtain reasonable economies in the use of water or in order

App. 49

to give to each ditch or water user a more advantageous

method of irrigation, providing that such rotation shall not

injuriously affect any of the rights determined or allowed

by this decree; that the Water Commissioner provided for

herein shall arrange for and enforce such rotation, but

shall consult with, and endeavor to obtain the agreements

of, such water users as in his judgment should resort

thereto, and shall embody his action in this regard into

such reports as he may make or be required to make to the

Court herein; that if no valid objection thereto be made by

other water users, an owner of any right decreed herein,

when the allowable diversion thereunder in the judgment

of the Water Commissioner does not constitute an ade-

quate irrigation head for his lands, may with or without

agreement for rotation, when permitted by said Water

Commissioner, divert a larger head or flow into his ditch

for short periods of time in lieu of the smaller flow allowed

to him under his said right providing always that such use

shall not exceed for the irrigation season the amount in

acre-feet herein specified and allowed to be diverted from

the stream for his lands; that appropriations and priorities

of the same date rank as having rights of the same stand-

ing, and as having a simultaneous call upon the stream

source in the proportion which said rights, as decreed

herein, bear to each other in amounts entitled to be

diverted thereunder; that any of the parties to whom

rights to water have been decreed herein shall be entitled,

in accord with applicable laws and legal principles, to

change the point of diversion and the places, means,

manner or purpose of the use of the waters to which they

are so entitled or of any part thereof, so far as they may do

so without injury to the rights of other parties as the same

are defined herein.

App. 59

XII

That a Water Commissioner shall be appointed by this

Court to carry out and enforce the provisions of this

decree, and the instructions and orders of the Court, and if

any proper orders, rules or directions of such Water

Commissioner, made in accordance with and for the

enforcement of this decree, are disobeyed or disregarded

he is hereby empowered and authorized to cut off the

water from the ditch then being used by the person so

disobeying or disregarding such proper orders, rules or

directions; promptly reporting to the Court his said action

in such case and the circumstances connected therewith

and leading thereto; that whenever the necessities of the

situation appear to the Court so to require, the Court shall

authorize the employment by the Water Commissioner of

such person or persons to assist that officer as to the Court

may seem necessary to carry out properly the provisions of

this decree and the orders of the Court; that the term of

employment, expenses and compensation of said Water

Commissioner and his assistants, the payment thereof and

the means and methods for securing funds with which to

pay the same, shall be fixed by orders which the Court

may hereafter from time to time make; that any person,

feeling aggrieved by any action or order of the Water

Commissioner, in writing and under oath, may complain to

the Court, after service of a copy of such complaint on the

Water Commissioner, and the Court shall promptly review

such action or order and make such order as may be

proper in the premises; that the owner or owners of each

ditch or canal herein authorized to divert water from the

natural flow of the Gila River for direct conveyance to and

irrigation of lands, unless specifically excused by the Court

or Water Commissioner, shall at his own expense install

App. 5”

and at all times maintain at any appropriate place at or

near the head of said ditch,

Page 113

a reliable and readily operated regulating headgate and a

measuring box, flume or other device which may be looked

and set in position — the same to be approved by the Water

Commissioner — so that the water diverted into said ditch

or canal at any and all times may be regulated and meas-

ured; that upon failure of any owner or owners to install

structures of the above described character on or before

one year from the date of this decree or on or before such

different day as the Court or Water Commissioner shall

set or determine — after due notice from the Water Com-

missioner so to do — the said Water Commissioner is

herein authorized to cut off diversions of water into said

ditch or canal until such devices and structures shall be

installed and maintained.

XIII

That each and all of the parties to whom rights to

water are decreed in this cause (and the persons, estates,

interests and ownerships represented by such thereof as

are sued in a representative capacity herein), their assigns

and successors in interest, servants, agents, attorneys and

all persons claiming by, through or under them and their

successors, are hereby forever enjoined and restrained

from asserting or claiming — as against any of the parties

herein, their assigns or successors, or their rights as

decreed herein — any right, title or interest in or to the

waters of the Gila River, or any thereof, except the rights

specified, determined and allowed by this decree, and each

and all thereof are hereby perpetually restrained and

App. 52

enjoined from diverting, taking or interfering in any way

with the waters of the Gila River or any part thereof, so as

in any manner to prevent or interfere with the diversion,

use or enjoyment of said waters of the Gila River or any

part thereof, so as in any manner to prevent or interfere

with the diversion, use or enjoyment of said waters by the

owners of prior or superior rights therein as defined and

established by this Decree; that nothing herein shall

prejudice the rights of any of the parties hereto or of their

grantees, assigns or successors in interest, under any

transfer or legal succession in interest after the com-

mencement of this action, to any of the rights hereby

adjudicated; that except as hereinbefore mentioned or

otherwise stated, the provisions of this Decree shall bind,

and inure to the benefit of, the grantees, assigns and

successors in interest of the owners of rights and parties

hereto, whether substituted as parties or appearing in this

case or named herein or not; that the several parties to

this suit shall pay their own costs in this action

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