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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1428%3A5

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2006

## Text

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

+e
v

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.

li

TABLE OF CONTENTS

| Page
SEPM DGPS BRMSEGEY 1 EOL? ccovesevevcesescesvescvocesconsesensevoseess i
eS BED erececevevseeesorcoesonceseenserssesenvereevens il
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 arleston which is on the river and from
Charleston yc. can go up the river swinging around the

App. 227

mountains near the Mexican Border to “%isbee. From
Bisbee one can return on a splendid highway to Phoenix in
a single day. Of course one could easily proceed from
Bisbee to Silver City and the head waters of the Gila

proper.
Very truly yours,
(ad) John F. Truesdell
Superintendent of Irrigation
JFT:HG

App. 228

APPENDIX 6

Coolidge Dam Project
San Carlos, Arizona.
September 23, 1926.

Mr. Edward A. Smith
Special Assistant to the Attorney General
Phoenix, Arizona.

Dear Captain Smith:

Referring to your letter requesting my comments on
the San Pedro River adjudication, I may say that Mr.
Truesdell’s and your own ideas accord very closely with
mine.

From an engineering standpoint the San Pedro River
is not a very large factor in the water supply of the Indi-
ans, or the closely related San Carlos Project. As has been
pointed out, it is a flash stream, pure and simple. Rapid
erosion of relatively recent years has made its course a
wide channel, very gravelly and sandy in its nature. The
normal or average flow soon sinks into the gravel and
while rock ledges or other obstructions occasionally bring
it to the surface, especially in its upper reaches, yet the
quantity reaching the Gila is almost negliable [sic]. It,
undoubtedly, would be very hard to show that any sub-
stantial quantity of the low flow would reach the Pima
Indian lands even though undiverted along its course.

As has also been pointed out, we do expect to make a
rather limited use of the flood flows of the San Pedro. This
is entirely dependent upon our facilities for its diversion.
While a reservoir at Charleston might at times shorten the
“lag” of a flood and accordingly decrease our diversion
possibilities yet on the other hand a flood on top of a full
reservoir, or any flow over the spill-way wouid act to

App. 229

increase the quantity subject to diversion. In times of
heavy rainfall or flood conditions the large watershed area
below the proposed Charleston dam would undoubtedly
furnish more water than we could divert. Increased
irrigation through storage and consequent stream flow
regulations-would increase the low or underground flow
reaching the Gila.

Personally I can not see any benefit to be derived, as
far as the Indian interest is concerned, from an adjudica-
tion of the San Pedro water. It would seem also, in view of |
possible storage development, that to involve the San
Pedro in what might prove to be protracted litigation
would work a hardship on the land owners and otherwise
create a condition which we ought, if possible, to avoid.

Very truly yours,
Engineer.

cc to Mr. Truesdell
Supt. of Irrigation.

App. 230

APPENDIX 7
BMP
4691-03-250 & Post Office Box 357,
Phoenix, Arizona,
October 20, 1926.
Attorney General,

Washington, D. C.

In Re: United States vs Gila Valley Irrigation
District, et al, Globe E-59.

Sir:

Yours of October 5th and 6th received, and I am
endeavoring in this to give you my general point of view in
regard to this suit of adjudication. It must be remembered
that it is extremely hard for the Government to prosecute
a suit of this kind, and I am greatly of the opinion that the
results desired in the suit already started could have
perhaps been reached in a more simple manner; however,
now that the suit has been brought, for various reasons,
both psychological and otherwise, which no doubt suggest
themselves to your mind, it would be far better to continue
the prosecution of it than to attempt to drop it and begin a
new suit.

A careful study of the bill of complaint, together with
conditions that exist in the matter of contracts with the
whites in the Florence-Casa Grande District, and also the
peculiar situation that exists in relation to the three
irrigation districts on the upper reaches of the river, to-
wit: Virden, Franklin, and Gila Valley, leads me to be
strongly of the opinion that this complaint should be re-
drawn. I am now and have been for some time working
upon that theory and the motions that I sent you a short

App. 231

time ago are motions leading toward a simplification and
precise naming of various defendants.

A new bill of complaint should be drawn, stating in a
better and more definite manner the rights of the plaintiff.
It could be so drawn as to much better describe the defen-
dants to the suit. By this I mean especially distinguishing
between those whose interests are on the side of, and
those whose interests are opposed to the United States;
and in this connection, I think a much more accurate
statement should be made as to the ways in which defen-
dants encroach upon rights of the United States. In the re-
drawing of this complaint, when the rights of the United
States (which include those of the Pima Indians together
with the whites in the Florence-Casa Grande Project, the
Apache Indians, and any other rights owned by the United
States) have been set up, due consideration should be
given to having this done in such a manner that some
method can be provided, if this is possible, of dispensing
with elaborate answers.

In a case involving as many defendants as there will
be in this one, the plaintiff will have to prove its case in
any event for the reason that it will be practically impossi-
ble and at least impracticable te search through the
numerous pleadings and attempt to rely upon admission
made by any defendants. Unless this simplification is
carried out, the pleadings will be so voluminous that the
case will be practically endless. I am of the opinion,
therefore, that the Government should offer in the bill of
complaint itself and by way of agreement or stipulation
said stipulation or agreement to be generally signed and
having the Court’s approval, that the averments of the bill
of complaint should be taken as in issue without formal

App. 232

pleading, or possibly this same result could be reached in a
motion for an order.

Another point which must be taken up either concur-
rently or immediately after deciding upon the plaintiff’s
rights and complaints is the territorial scope of the suit for
adjudication. You already have on file in your office a
special report on the San Pedro River phase of this adjudi-
cation which gives in part my ideas of the territorial scope
of this suit. There is one point at the present time which I
am considering and am going into as fast as possible in
regard to this phase of the question and that is the ques-
tion of extending the suit in the state of New Mexico. I am
not yet satisfied on the legal points involved and if there is
clear authority to have the adjudication disregard state
boundaries, the addition of certain lands in that part of
the Duncan Valley which extends into New Mexico and
possibly the addition of another small valley further up
the Gila River might be very desirable. However, this is a
matter which must be subject to considerable investigation
and will be determined to some extent by information
which I am now gathering through conferences with the
Indian Service Department. While the foregoing matters
are being gone into and decided, it is also very desirable to
decide who are the proper parties defendant. In fact, these
three questions are so entirely dovetailed and interlacing
that they must be decided and worked out in the most
definite manner each with the other.

In a suit for the adjudication of water rights, I have
come to believe that the end sought is the allocation of
water to particular lands. This ordinarily can be reached
by making the diverting agencies defendants on the theory
that they can represent the lands even though they are not
the ultimate owners of the water rights or by adding to

App. 233

these diverting agents the water owners and users them-
selves, and if this end is attained, the adjudication suit
has attained its purpose.

The State of Arizona has done a great deal of work
making water adjudications within various districts that
the present suit is supposed to cover, and it seems to me
that it would be wise for the Government to attempt to use
these adjudications as far as they are reasonable [sic]
accurate. Of course, the Government can not do this as a
matter of right and it will have to be done by agreement or
stipulation which, I am of the opinion, if the bill of com-
plaint is re-drawn or amended properly, can be accom-
plished. In considering the question of defendants, there
also arises the fact that while many of the potential
defendants are members of water users’ associations or
ditch companies, yet apparently there are a number of
water users who have old rights and are not members of
water users’ associations and are getting their water
through appropriations made and small ditches con-
structed by them and these users’ lands are situated in
most instances just outside of or between districts. This
class of water users has to be thoroughly investigated,
their source of supply, whether or not they do have some
connection with the water users’ associations, whether
their names are still on the records, or if they still are
users of the water, must all be gone into before an intelli-
gent opinion can be formed.

The list of defendants now named in this adjudication
numbers somewhere in the region of 450. In my investiga-
tions up to the present, I have already found (this I have
spoken of in my monthly reports) quite a number who
were deceased and had been deceased for some time prior
to the filing of this suit. I have found a great many who

App. 234

were referred to as “John Doe” defendants that I have
been able to locate and give their proper names. I have
found many errors in the spelling of names and errors in
the initials as to the exact naming of defendants. I have
found a number who were not named as defendants who,
when the proper scope of this adjudication has been
arrived at, no doubt will be proper parties defendant, and
a number who have made answer though not named as
parties defendant. So, that in the ultimate analysis of this
case, we are bound to have some hundreds of defendants.

I would like to say just a word here in regard to the
warning order which is on file in this suit. The only refer-
ence or attempt at a basis on which to place the warning
order that I have been able to find is in the following:

“That certain others of said defendants, to-wit: No-
chols and Company, Franklin Canal Company, four other
corporations, and thirteen defendants are named as
defendants as doing business in the District of New
Mexico, County of Hidalgo, or resident thereof.”

Another paragraph on page thirteen of the printed bill
of complaint, beginning on line twenty-five states:

“First: ‘hat a subpoena may be issued out of and
under the seal of this Honorable Court directed to the
above named defendants who are residents of the said
District of Arizona as aforesaid and that warning orders
may be duly issued to such of said defendants as are
residents of the District of New Mexico and that an order
for service upon such defendants as cannot be found be
duly published, according to law, commanding them and
each of them to appear before this Honorable Court on a
certain day and under a certain penalty to be herein
inserted, to answer this Bill of Complaint sentence by

App. 235

sentence and paragraph by paragraph the same as if the
same were again repeated and him thereunto particularly
interrogated, setting up fully their claims to the waters of
the said Gila River and its tributaries.”

This warning order was based upon those two allega-
tions while at the same time every party defendant named
in the bill of complaint is named in this warning order
with no supporting affidavits filed, giving the court no
allegation or certainty as to what defendants this warning
should apply. Quite a number of defendants named in the
warning order have already been served, and I am fairly
well grounded in the opinion that in a suit of this charac-
ter every defendant can be reached either through some
water district, some irrigation canal company, or through ~
the land upon which the water is supposed to be used.
Having the proper parties in court with proper service is
one of the vital requisites in a matter of this kind.

A careful analysis of this adjudication shows that as
far as the present water users are concerned, who are
listed as parties defendant, will ultimately become also
witnesses in the case as it will (if the complaint is re-
drawn) cause them either by making a showing in court or
by agreement and stipulation to show their usage, appro-
priation, and right to use. This is undoubtedly true as it
relates to defendants other than the Indians. The matter
of evidence as far as the Indian use is concerned is almost
entirely a matter of record and of law. If the record evi-
dence can be obtained, and I sincerely believe it can, that
will bring the Indian use of the lands and water and the
intention of the Government toward reserving water for
their use, at the time of establishing the reservation,
under the Winters Decision, there will be little need for
parole evidence.

App. 236

I am bending every effort toward the early solution of
this case along the lines indicated in your letter, and I feel
that the Government should be ready to procede [sic] with
the trial whether or not it can use the decrees already
promulgated by the state courts; but in any event, the
work of presenting the Government’s case will be very
great. The Government will be under the necessity of
taking care of its claims on behalf of the Indian wards and
its projects as well as the whites that it represents on
account of the contract with the Florence-Casa Grande
Association. Many certified copies of public documents will
have to be obtained. The Indian Service has much exhaus-
tive and valuable data which will have to be gotten into
shape.

Such progress as I have briefly outlined above, I feel
will meet with the approval of the Indian Service; it will
also be approved by the white users in the Florence-Casa
Grande District, who are working on the side of the
Government. I also feel certain that this program will be
approved by friends of the Indians generally. I am also
entirely convinced that to carry out this program will save
time and expense; that if the Government attempts to go
ahead with this adjudication suit under the bill of com-
plaint as it now stands with the existing unnecessary wide
scope of the suit, with no provisions made for the simplifi-
cation of the pleadings, the result will be delay and confu-
sion. The time to straighten out these matters is now, even
though it does appear on the face of it that we are moving
with no great degree of rapidity. To be of its greatest value, —
the adjudication must cover water rights accurately to
some 150,000 acres of land, provided the scope of the suit
is limited, and to a considerably greater acreage if the
scope is not limited but is allowed to stand as it is at

App. 237

present. To do this work well, in my mind, is the principal
issue; to do it promptly is most desirable; but the obtaining
of proper and satisfactory results rather than getting
quick results is really the important consideration.

Very respectfully,

Edward A. Smith,
Special Assistant to
the Attorney General.

EAS: G

App. 238

APPENDIX 8
IN THE DISTRICT COURT OF THE UNITED STATES,
IN AND FOR THE DISTRICT OF ARIZONA,
Globe Equity No. 59

THE UNITED STATES
OF AMERICA,

Plaintiff,

V. of

)
)
)
)
)

GILA VALLEY IRRIGATION ) THE UNITED STATES
DISTRICT, AND MANY )
OTHERS,
)

Defendants,

PURPOSE, SCOPE AND NATURE OF SUIT

THE OBECT [sic] OF THE SUIT IS TO ADJUDI-
CATE RIGHTS TO DIVERT WATER FROM THE
GILA RIVER WITHIN A DEFINED AREA, OR
STORE IT ABOVE FOR USE WITHIN THAT
AREA. THE SUIT IS IN THE NATURE OF ONE
TO QUIET TITLE TO REAL ESTATE.

This suit is one to adjudicate water rights within a
specified area of the Gila River. That area is defined in the
complaint and roughly embodies the stretch of the river
extending from the lower or western end of the Gila River
Indian Reservation, 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, exclud-
ing, however, rights to divert water of the tributaries — the
Salt, which flows into the Gila on the western edge of the
Gila River Reservation; the Santa Cruz, which reaches the

App. 239

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 ... Coolidge reservoir; the San Francisco, which
joins ... also from the north above the Solmonville-Safford

. below the Duncan Valley; the San Simone, 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.

The purpose of thus limiting the scope of the suit is
that it is thought that the so-called Kent Decree and other
adjudications adequately protect the rights of the United
States as far as matters here in controversy are concerned
on the Salt River, and that the situation is such that no
useful purpose would be served by attempting to adjudi-
cate rights and administer diversions from the stream in
this action outside of the territory mentioned, except to
determine the rights of the defendants named, if any, to
store water on reaches of the Gila River above the terri-
tory mentioned and above the Coolidge reservoir for
purposes of using it within the general area covered by
this suit.

The suit is primarily intended to protect the rights of
the plaintiff, the United States, but it is realized in so
doing it will necessitate the administration of the stream
within the area mentioned, by this court, and therefore an
opportunity is afforded for a full settlement of rights
within that area — a settlement between the defendants
among themselves, if they so desire, as well as a settle-
ment between the defendants and the plaintiffs.

App. 240

The suit is in the nature of one to quiet title to real
estate. The rights which the plaintiff, the United States,
sets up and claims are distinct property rights and of the
same general character as rights in land. The United
States, here, does not set up and seek to have its title
quieted to all of the rights it owns in this stream within
this area, but simply to the rights described in the com-
plaint.

App. 241

APPENDIX 9
IN THE DISTRICT COURT OF THE UNITED STATES
IN AND FOR THE DISTRICT OF ARIZONA

---000---
Thé United States of America, )

Plaintiff, Globe Equity No. 59
vs ) Motion to Dismiss
Gila Valley Irrigation Dist., et al. Certain Defendants

Defendants. )

Comes now the United States of America by John G.
Sargent, Atturney General, through Edward A. Smith,
Special Assistant to the Attorney General, attorneys for
the plaintiff, and moves to dismiss the action heretofore
filed in this Court in relation to the Boquillas Land and
Cattle Company and the San Pedro Water Users’ Associa-
tion, heretofore named as defendants in this action,
without prejudice and without cost, said defendants
having prior to the submission of this motion withdrawn
their answers, heretofore filed in this action, the motion to
dismiss being made for the reason that the said Boquillas
Land and Cattle Company and the San Pedro Water
Users’ Association are not necessary parties to the action
and that the purposes of this suit and the interests of
these defendants will be better served if they are not made
parties defendant.

Edward A. Smith,
Special Assistant to
the Attorney General.

App. 242

APPENDIX 10

MEMORANDUM RE HISTORY AND
STATUS OF THE GILA SUIT SETTLEMENT

1. The trial of this suit was halted early in 1931 in
pursuance of a general understanding between defendants
and the Government (the Departments of the (Interior and
Justice) that concerted effort for a settlement should be
made, and that the basis for it then being discussed
indicated that it should result favorably. In accomodation
[sic] of this undertaking the hearings before the Master
have been adjourned from time to time — generally for
sixty day periods — it being the conception of the parties
generally that the pressure incident to keeping the suit
alive would tend to expedite the negotiations and insure
the cooperation of the interested persons.

2. The issues between the so-called upper valleys
defendants (above the San Carlos Reservoir) with their
40,000 odd acres of cultivated lands, and the plaintiff with
its Indian and Project rights below covering 100,000 odd
acres of land, make up the main controversy on the river.
This is proposed to be settled by a so-called substituted
storage arrangement under which the said upper vailey
defendants will be allowed to divert from the natural flow
of the Gila, in disregard of plaintiff’s prior rights below, in
accord with apportionments of that natural flow based on
the available storage in the San Carlos Reservoir, being
relegated to their junior rights (or to be more accurate, to
the rights and priorities stated in the Priority Schedule)
when no such apportionments are available by reason of
lack of storage. The settlement also involved the disposal
of quite a large number of other controversies, mainly
growing out of claim of rights to the natural flow of the
Gila in the so-called Winkleman area below the San Carlos

App. 243

Reservoir but above the San Carlos Project, and claims by
landowners in the Florence-Casa Grande territory but
outside the presently designated or determined boundaries
of the San Carlos Project. It was conceived that the set-
tiement, if fully effective and adequate, would involve a
definition and determination of all existing rights in the
Gila River within the scope of the suit, and the elimination
of all parties who did not belong in the suit but happened
to be there by reason of mistakes, inadvertencies or the
like which occurred before our advent.

3. The settlement, in order to make it readily en-
forcible [sic], was planned to be embodied in a so-called
consent decree which would fix and define, in accord with
said settlement and in every detail, all rights involved in
the litigation, and provide the machinery for their control
and administration. Our job. therefore, has been in effect
to ascertain and establish, by consent as distinguished
from trial, all of the rights involved, and to set them down
in the form of a valid and effective decree which, upon its
being assented to in writing by the defendants on the one
hand and by the plaintiff on the other (presumably
through the assenting signatures of the Attorney General
and Secretary of Interior) would be signed and entered by
the Court. As planned, the matters of adding the necessary

_new parties, of the elimination of those not needed or
improper, and of the taking of further orders pro confesso
and the like, are to be handled by appropriate process in
advance of the entry of the decree. As minor changes in the
name schedule, where so many hundreds of the people are
involved, are likely to be needed up to almost the closing
hour, it is proposed to have the necessary motions and
orders made just before filing the decree, under one

App. 244

comprehensive notice charging all proper parties, which in
turn will work an economy.

4, While the method proposed for settling the main
controversy has been agreed to in principle by the parties,
the undertaking, as is apparent, has been primarily made
up of negotiating, digging up the material for, and putting
together a complete document which can be signed and
made the instrument of perpetuating the settlement. The
preparation of this document has kept pace with the
various phases of the negotiations, and is in the form of an
assumption that the negotiations will result favorably arid
that all ancillary proceedings in support thereof will have
been taken. Upon being notified that lack of available
funds made it necessary to transfer the conduct of these
matters in the Government’s behalf to the United States
Attorney’s office of Phoenix, I turned my attention from
pending negotiations to the completion of the proposed
decree, at least in draft form, as the best method of ex-
tending aid to my successor in the matter. This draft is
attached to this memorandum and the following comment
upon the particular Articles thereof will show in outline
the tasks which are yet to be undertaken in the premises.

TITLE OF THE CAUSE

5. The title of the cause which will head the decree will
contain the names of all those who at any time have been
made parties defendant in the suit under and since the
amended complaint. It is here in a draft form with the names
of the defendants set down in alphabetical order. The list
includes those who yet are required to be added to the suit as
new parties. The draft as it stands should be correct in the
large but will require proof reading and a final check against

App. 245

the record. A cross check should show that parties separated
from the cause plus parties accredited with rights by the
decree equal defendants named in the title.

ARTICLE I.

6. The first paragraph of Article I records dismissals
of the suit and amended complaint heretofore made, with
the list of parties defendant so affected. Paragraph 2 of the
same Article records, as if done, the dismissal of the suit
and amended complaint as to an extensive list of parties
defendant. These lists have been made up with care but
will require a final check against the title and the record.
The inclusion of a considerable number of these names
involved somewhat close decisions as to how those particu-
lar parties should be disposed of in the case; also the
Florence-Casa Grande Water Users’ Association is a
special case in that it has answered showing its members
have interests in common with the Government. A formal
assent by its solicitor should support the dismissal.

ARTICLE II.

7. The first paragraph of Article II records, as if
done, the dismissal of the suit and amended complaint as
to the defendants there listed. These men and concerns
are located on the tributaries and do not belong in the suit.
However, they are answered for by Solicitors Ellinwood &
Rose (for Arizona Copper Company and Phelps-Dodge
Corporation and Morenci Water Company - the latter now
being represented by Morris & Malott of Globe) and
Solicitor H. A. Elliott for the others; such answers, as
usually is the case in the water suits of this character,
setting up affirmative matter. Duly executed stipulations

App. 246

in the premises with above named corporations are in the
office files, with the understanding that counsel will have
an opportunity to see our proposed motions and orders,
and the stipulations with the other similarly situated
defendants, etc., when the time comes for their filing and
presentation. My memorandum to Mr. Elliott of June 1,
hereto attached, will explain the situation of his clients
here, and submits a stipulation in the premises. I under-
stand that he regards it as necessary, at least as to a
considerable number of said defendants, that he have
special authority from them to sign the stipulation and is
planning to consult them in the field.

8. The second paragraph of Article II record, [sic] as
if done, the dismissal of the suit and amended complaint
as to the defendants there named. Stipulations are re-
quired in this instance also because of the fact that an-
swers setting up affirmative matter were filed for these
people. You will notice that the dismissal in this instance
is ‘with prejudice’. The questions involved here are dis-
cussed in my memorandum to Mr. Elliot (already men-
tioned) and to Mr. Gust of June 16, which is also attached
to this memorandum. In passing, it should be noted that
Schedules marked “A” with each of said memorandums
show corrections in names which will have to be made as a
part of the proceedings described in the latter part of
paragraph 3 above. A memorandum for Mr. Denton, soon
to be complied, will make a similar showing in its Sched-
ule A. As a measure of precaution, we had planned to
make another and final check against the record of the
data given in these memorandums.

9. The third paragraph of Article II has to do with
the proposed special dismissal of the cause as to the defen-
dants there named, and further assumes that stipulations

/

App. 247

providing for said dismissals wil’ *2 made and filed in the
cause. The entire paragraph makes what might be re-
garded as the ideal set-up in the event that the somewhat
delicate and necessarily rather extensive negotiations with
these defendants should result in their elimination from
the cause. These people comprise the so-called real defen-
dants within the Florence-Casa Grande area. They have
files [sic] answers setting up claims of rights to the waters
of the Gila River but, in effect and perhaps primarily, are
seeking by way of said answers to compel the Government
to allow them to participate in the benefits of the San
Carlos Project, claiming that their lands should have been
designated as within said Project because of their location,
rights to water, ect. [sic] Their lands if watered at all
(unless by independent pumping operations) must look to
the Government canals for their deliveries. The negotia-
tions as to these people are in a quite delicate stage. To
carry them forward would involve commitments for the
future. They were curtailed on receipt of the letter from
the Department of April 28, 1932, which in effect states
that such commitments would be in violation of instruc-
tions. The fact was also in point that the United States
Attorney had informed the solicitors in the cause more or
less generally about a month ago that he was expected to
take over this work.

10. The negotiations with the Fennemore and Stahl
clients, which make up the second and third groups listed
in the paragraph, have made some definite progress.
There would seem to be a good chance, under skillful and
fair handling, that those solicitors may be able to consent
to have their clients eliminated from the suit along the
lines set down in the third paragraph of Article II. Certain
rearrangements of area are involved in one instance, and

App. 248

in all it is the idea that their remedy, if any there be, must
come out of the Department of the Interior, or even possi-
bly Congress. The understanding with the clients of Judge
Norviel, who make up the last group (Catherine A. Nor-
viel, H.D. Thornton, and Helen Slaughter) may be re-
garded as fixed. As aforesaid, the matter is a delicately
balanced one, and it was planned to expedite the (poten-
tially favorable) negotiations with the Fennemore and
Stahl clients, and under this advantageous precedent to
take the matter up with Judge Baughn who represents the
first, and in some measure the most troublesome, group in
the paragraph.

11. Avery considerable effort has been directed to this
phase of the case by reason of its evident and somewhat
unique importance. A failure to blast these people out of the
suit apparently means an eventual trial of of [sic] the
special issues involved. The idea of achieving a settlement
regardless of their claims, although presenting some real
difficulties, of course should be explored in due order.

ARTICLE III.

12. Article III provides for the separation of a con-
siderable list of people from the suit for the reason that
they are not necessary parties, having interests in com-
mon with plaintiff under contracts which assure deliveries
of water under the direct reservations and appropriations
of the United States. It is assumed that the solicitor for
plaintiff, with formal assent of the other Department and
attorney Robert Denton, who, in a sort of part measure,
has answered for a great number of them under the aegis
of the Florence-Casa Grande Valley Water User’s Associa-
tion, would have the power to accomplish the proposed

App. 249

dismissal upon its own motion. The list, however, will
require a final cross check against the record, San Carlos
District files and title of the cause.

ARTICLE IV.

13. Article IV sets up the decree pro confesso which
in due course necessarily follows the taking of orders pro
confesso against those who have defaulted in making
appearance, plea or answer. Quite a larger number of
orders pro confesso were taken in the earlier stages of the
suit, but apparently none were valid save those against
the American Smelting and Refining Company, D. Ber-
toglio, Beatrice Perry, James B. Pruett, and Antonio
Specia. The Article as it stands assures that orders will
have been taken against the other persons named therein
at least more than thirty days in advance of the entry of
the decree. Spaces are provided in the list for the possible
entry of the names of T.K.B. Glasspie and Grady L. Her-
ring whose situation is further discussed in connection
with the text for Article X.

ARTICLE V.

14. With this Article we enter into the more substan-
tive part of the decree. It begins the text which has for its
purpose an effective and adequate definition of the rights
which are being adjudicated. As now written it contains
items and paragraphs which are in accord with advanced
and modem practice in the matter of setting up water
rights in decree form. On the other hand the Priority
Schedule and accompanying tables to which it refers are of
voluminous and complicated character, and were I to be
further occupied with the matter, I would make some

App. 250

careful review of the possible further requirements as to
the text which will introduce said Priority Schedule and
tables. The defendants in the cause may also have some
suggestions to make in this regard. The Priority Schedule,
itself, which is made part of this article, may be regarded
as a completed and checked document, I believe, save in a
few particulars. It provides, insofar as they can be antici-
pated, blank spaces for those rights concerning which
negotiations are still pending (primarily located in the so-
called Winkleman area), and as to a certain few names
and descriptions awaits further specific word from the
field. It has been the plan, I think, of the counsel for the
main group in the upper valleys to make it available by
copy at some convenient place for examination by individ-
ual defendants as a sort of final check and perhaps, in
passing, to charge their clients with notice as to the
specific statement of their priorities in the decree. Its
items in large measure are based upon various regional
decrees and water commissioner’s findings, as interpreted
by defendants’ engineer and the writer; undertainties, [sic]
omissions and excesses being cured in so far as practicable
as we digested the great grist of material before us. Head-
ings for the various columns in the Priority Schedule are
inserted for the first page; the completion of this typing job
for the other sheets, as a measure of economy, being left
until the last in discount of the possibility that the build-
ing of the Schedule through its various years might
suggest some minor modifications in the headings. At the
present writing they seem to me adequate as they stand,
however, and presumably may be typed into the appropri-
ate blocks when a clerk can be assigned to the task. The
sheets of the Priority Schedule, and of the tables attached
thereto, are numbered serially in Arabic. It is proposed to
number the pages of the title and text of the decree,

App. 251

running right through the document before and after the
Schedule and tables, with worded numbers or Roman
numerals,

ARTICLES VI and VII.

15. In the Priority Schedule it was practicable only
to give intelligible references, under appropriate dates of
priority, to the rights of the United States. Later Articles
of the decree are there referred to for the specific set-up
and description of said rights. Article VI does this and
Article VII further defines the interior mechanism which
is to regulate the handling of said rights. These Articles
are generally self-explanatory so but little comment is
needed here. The specific description of the 27,000 acres of
‘White’ lands covered by the Florence-Casa Grande appro-
priation, and of the 50,000 acres of ‘White’ lands (inclusive
of the said 27,000 acres) which apply to the reservations
and appropriations as of 1924, for the San Carlos Project,
are set out in detail and in proper order of township and
section on the large number of wide carriage sheets which
are introduced at appropriate places in Article VI. As a
matter of extra precaution these descriptions should have
one more final check in the Project office, but I believe
their present accuracy is pretty well established.

ARTICLE VIII.

16. This Article is an attempt to express, in the
appropriate language of a decree, the adjustment and
settlement between the United States and the so-called
upper valleys defendants, which latter make up the main
body of the so-called real defendants in the cause. The text
of the Article, as will be evident from an examination of it,

App. 252

has to do with the substantive and administrative phases
of our so-called substituted storage adjustment with these
people. It is a technical and rather complicated matter,
and its set-up in the text of the decree no doubt will
require some further careful consideration by the Gov-
ernment representatives. A fortiori the defendants and
their solicitors will no doubt demand some further time for
its consideration. As indicated in an earlier paragraph we
are assured by them that it is acceptable in principal.

ARTICLE IX.

17. The Nevada Consolidated Copper Company is
operating a large copper reduction enterprise on the Gila
River below the San Carlos Reservoir but above the
intakes of the Government canals. The rights under which
it has been taking water from the river (or form the gravel
beds directly supplied by the river) are junior to certain
extensive rights of the Government below. The Article
records an adjustment with the company under which
their uses of water for their copper enterprise, and for the
irrigation of some small ranches along the river, may be
continued in disregard of plaintiff’s priorities upon the
payment of certain stated sums. This settlement adheres
quite closely to the abov» described substituted storage
plan, and apparently can be consummated in accord with
the terms and conditions laid down in the Article. A
suggestion by the company that a percentage of elasticity
be allowed in top diversions when the enterprise is carry-
ing a peak load is taken account of in the provision written
upon a slip attached to the Article. It is conceived that the
Government might well assent to this minor amendment.
The rights and priorities of the company for its industrial
and irrigation uses had to be ascertained by some research

App. 253

into the history of the district (the so-called Winkleman
area), and joint investigations on the ground. These rights
have been set down in their order upon a separate wide
carriage sheet which is attached to this memorandum. It
is proposed to introduce them into the Priority Schedule
under the years corresponding with those named in the

Exhibit.

ARTICLE X.

18. This Article has to do with certain other priori-
ties and rights in the so-called Winkleman area, which as
aforesaid lies below the San Carlos Reservoir and above
the Project diversion dams. The principal owner and
claimant, outside of the Nevada Consolidated, is one
Joseph J. Anderson whose ranch was instituted on the
river in the year ‘78, and has been a going concern (save
for occasional failures to divert water on account of floods
or otherwise) since that time. Grady L. Herring, although
in default on the face of the record, also apparently has a
small right as of a late date of priority. T. H. B. Glasspie is
a claimant but there is apparently a lack of evidence in
support of any irrigation on his place during the last eight
years. Both of these names were included as possible
subjects for orders pro confesso as well as in this place. As
a matter of strategy it was the plan to dispose of them as
soon as a favorable settlement had been reached in the
more serious case of Joseph J. Anderson. Negotiations
with the latter were on their way to a conclusion a short
time ago, but could not well be followed up under the
conditions described in the above comment on the third
paragraph of Article I] and because of the necessity of
devoting all of my time to the production of the decree
form to which this memorandum refers. Anderson is

App. 254

represented by attorney Holzworth of the Phillips, Holzworth
and Phillips firm at Phoenix and is an old-timer with positive
and extra-legal theories, for example, about his priority over
Indian claims. Never-the-less, favorable progress was made
in his case, and it is conceivable that there is yet a good
chance, by skillful and fair handling, to settle with him along
the lines indicated in the Article, which again corresponds
with the substituted storage plan proposed for the upper
valleys defendants and involves the payment of a stated sum
per acre in consideration of his being allowed to divert stated
amounts of water in disregard of Government priorities
below. Failure of settlement here would involve an eventual
tribal of the Government suit as against Anderson, unless
under current financial difficulties, he should decide to take
his chance under such rights as of course will be allowed him
in the priority table.

ARTICLE XI, XII, and XIII.

19. These Articles, I think, are I [sic] accord with
modern practice and are self-explanatory in their charac-
ter. The appointment of a Water Commissioner to adminis-
ter the decree is provided for his general duties outlined.
Article XIII carries the usual injunction against interfer-
ence with the rights defined in the decree, and makes
other formal and necessary provisions in the premises,
including the common expedient in cases of this sort of
having each party assessed with his own costs in a suit.

OLIVER P. MORTON

Dated: Phoenix, Arizona, June 27, 1932.

App. 255

APPENDIX 11
Florence, Arizona,

Vecember 29th, 1931.

John Mason Ross, Esq.
Ellinwood & Ross,
Luhrs Tower,

Phoenix, Arizona.

My dear Mr. Ross:

In the matter of the relation of your clients, the
Arizona Copper Company and Phelps Dodge Corporation,
to the Government’s suit i» *djudicate rights on an exten-
sive part of the Gila River, it may be well for me to sup-
plement our somewhat recent conversations with a letter.

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 between New Mexico and
Arizona and excluding the tributaries, would include all of
the diversions 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 wer» not of such a character as to necessi-
tate 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.

Your clients and others who divert from the tributar-
ies or otherwise outside of the area meant to be covered by
the suit, were made defendants through inadvertence. It is
our view, as we have already explained in conversations,
that from our standpoint, and we think also from your

App. 256

own, they should be dismissed from the suit, and of course
without prejudice.

We understand the idea that it might be of advantage
to your clients to have their rights settled as against the
San Carlos project and other Government interests and
also as against the other parties to the suit. It seems to us,
however, that the place they would gain in the schedule of
rights would not give them much of practical value unless
they were admitted to the substituted storage scheme
planned for the agricultural lands which are within the
scope of the suit and lie above the San Carlos Reservoir. It
is possible for the Government to bring those agricultural
lands into such a scheme because they have used a certain
considerable amount of water in the past which has not
been counted upon by the San Carlos Project. It is there-
fore possible for that project, for a consideration, to allow
those lands to take water in disregard of the project’s
earlier priorities during certain stages of water in the
reservoir.

This situation however, is not paralleled by that of
your clients whose past uses have been small in compari-
son with the uses you contemplate for the future.

It seems to me that the matter of fixing your clients
rights to divert from the stream as against the Govern-
ment’s interests, which are principally those of the San
Carlos Project, is a matter that should be left to the future.
When yeu know What [sic] development you wish to make
and therefore your need for water I should think that it
would be entirely feasible for you to make an arrangement
with the San Carlos Project. The basis of such an ar-
rangement, I imagine would be found in the fact that there
is water entering the river above the San Carlos Project

App. 257

but below the Coolidge dam, especially from its tributary,
the San Pedro, and also in the fact that underground
waters perhaps not directly connected with the river can
be made available to that project by pumping. I should
think it would be feasible for your company to provide the
means for making waters of this character available to the
project in return for which the project could agree that
your company divert from the Gila or its tributaries to the
extent of its needs above the San Carlos Reservoir.

Obviously any arrangement of this sort would have to
be made after your clients’ needs are pretty well under-
stood. Equally clearly of course | cannot promise anything
as to the future or bind the Government or the project or
even myself in any way. It simply seems to me that it is
wise from both your standpoint and that of the United
States for your clients to be dismissed from the suit, and
that the physical and legal situation is such as to make it
possible for you clients to get the water they need upon
reasonable terms.

Very truly yours,

John F. Truesdell,
Chief Field Counsel.

App. 258

APPENDIX 12
GILA RIVER ADJUDICATION SUIT, ARIZONA

Memorandum for the Commissioner of Indian
Affairs and the Solicitor of the Interior Department

John F. Truesdell, March 26, 1934.

1. 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. The right to such disposition is
not clear. Ordinarily we would have to proceed with the
trial. But in a case of the magnitude of this one when all
but a few of the numerous parties desire to settle and
when to proceed with the trial would take a great deal of
time and be expensive and in the end might not achieve
results obtainable now by a settlement, we think the court
has the power and would have the inclination to aid the
settlement in the way suggested.

In presenting the matter to the court I think the
Government’s representatives ought to be able to say that
the settlement has the approval of both the Department of
Justice and the Department of the Interior; and that, if the
disposition of parties asked for is made, the Attorney
General and the Secretary of the Interior on behalf of the
plaintiff, the United States will join the remaining defen-
dants in consenting to the entry of the decree formally and
through their signatures.

2. This suit, contemplated before the passage of the San
Carlos Act which provided for stored water for the Indian
land and such White lands as could be taken into the San
Carlos Project, was decided upon as necessary and was
instituted by the Department of Justice in 1925, which

App. 259

was after the passage of the San Carlos Act. Its purpose
was and is to define rights in the Gila river, exclusive of its
tributaries, from the point where that river is joined by
the Salt River, at the foot of the Gila River Indian Reser-
vation, to a line parallel with and ten miles east of that
which divides Arizona from New Mexico.

3. The chief difficulty has been to reconcile the rights and
equities of the United States on account of the Pima
Indians and their reservation, and rights of the United
States on account of its Florence-Casa Grande and San
Carlos Projects, with the rights and equities of some
40,700 acres of land in the Safford and Duncan Valleys
which are situated above the San Carlos Reservoir, and
which we commonly call the Upper Valleys.

Irrigation in these Upper Valleys has been going on since
1872. Based upon it, substantial communities have been
established. But the important thing is that all this has
been going on in disregard of the prior rights to water of
Pima Indian lands and White lands situated farther down
the river.

The San Carlos Reservoir, which has been constructed
for the benefit of these lower Indian and White lands now
contained in the San Carlos Project, more than compen-
sates for the out-of-turn drafts on the stream of these
Upper Valley lands, Also in estimating the water supply
available for the San Carlos Project, measurements of the
river flow were made below these Upper Valleys and so
after the river has been depleted by the irrigation there.

In settling the suit it seems fair, and within the broad
intent of Congress, in providing money for the San Carlos
Project, to make the San Carlos Reservoir inure in part to
the benefit of these Upper Valley lands. This can be done

App. 260

by allowing those lands to use water somewhat as they
have in the past byt [sic] under definite restrictions and
only to the extent that the reservoir during the yearly
irrigation season supplies stored water for the San Carlos
Project lands.

Accordingly a plan, called the “substituted storage
plan”, has been worked out and is embodied in the pro-
posed decree. Briefly it allow [sic] the 40,700 acres of
Upper Valley lands to divert from the stream in the order
of their own priorities, or in part\|as may be agreed be-
tween the Safford and Duncan Valleys, and within the
duty of water fixed by the decree, in disregard of the prior
rights of the San Carlos Project but limited to the extent
that water has bee [sic] stored in the reservoir during the
year and limited also to an annual net draft of not more
than 120,000 acre feet.

4. The principal advantages of this settlement to the
Indian and White lands of the San Carlos Project are: (a) it
settles their rights in the natural flow of the stream to an
extent and with priorities deemed satisfactory and per-
haps much better than could have been obtained if the suit
were fought out; (b) It defines the Upper Valley lands
having water rights and limits their uses, and by giving
the San Carlos Project a storage right as of 1924, does
much to protect that project from future unwarranted
encroachments on the stream above the project lands. And
the chief advantages to the Upper Valley lands are: (a) the
removal of the menace of enforcement of prior rights below
as long as the San Carlos Reservoir storage conditions are
met, thus giving those lands a reasonably secure water
right; and (b) bringing them into an ordered administra-
tion with San Carlos Project lands and so giving them a

App. 261

sort of recognition and perhaps preference if further
protection for them should be found feasible in the future.

5. The settlement has been discussed so much and has
been so fully reported upon from time to time in the past
that I think only a few features of it need to be touched
upon here. The full draft of the decree made by Mr. Morton
as Special Assistant to the Attorney General in charge of
the suit for the Department of Justice, with Mr. Walter
Elliott’s able assistance throughout and especially on the
long schedules of rights and priorities, remains the basis
of what we are presenting now. Only a few and, in my
view, unimportant changes have been made. These are
described and discussed at length in the memoranda
referred to in the general stipulation for settlement and in
subsequent letters and other reports.

6. The Indian rights given by the decree are so important
that I wish to speak of them again briefly.

7. The amended bill of complaint claims for the Pima
reservation a first right with immemorial priority for all of
the so-called primary allotments (those intended to be
irrigated) which amount to some 50,000 acres. This claim
was made on the sound legal principle of an implied
reservation by the United States of enough water to carry
out its purpose in reserving the land, Under this principle
the amount of water needed and intended to be reserved
becomes the question for the courts to determine. In
deciding this important question the main factors are: the
area on the reservation which could be irrigated from the
stream, the Indian population at the time of the reserva-
tion and at the time of the trial; their aptitude for farming
the quantity of land they have irrigated in the past; their

App. 262

own and the Government’s intentions as to future irriga-
tion as shown by irrigation works and the like, etc.

In the case of the Pima reservation, these tests were
met satisfactorily. The Pima always had been irrigators
and the plans of the Government for actually irrigating
the 50,000 acres were elaborate and were being prosecuted
vigorously.

8. When requests to settle the case came from the Upper
valley defendants and the Governnient in the field had
instructions from the two departments to settle it, the
matter od [sic] determing [sic] the extent of the Govern-
ment’s reserved rights for the Pimas’ reservation and also
for the Apaches’ reservation became one of negotiation.
Those things had to be determined in the light of the
forgoing principles and with regard to the rights of others
and with a view to arriving at a fair and workable decree.

_In the Pima case the government men had roughly
three possibilities for the extent of the early reserved
right: the something like 12,000 acres the Indians seem
always to have irrigated; the 23,000 acres or so of land
they had irrigated in the aggregate but not all at one time;
the 35,000 acres contemplated to be irrigated under the
Florerce-Casa Grande Project; or the full 50,000 acres

claimed.

The 35,000 acre figure was chosen as the one best
fitting the conditions.

9. The Apache claim presented difficulties. There, neither
the Indians, nor the Government for them, were irrigating
from the river, and irrigation there from that source in all
the past has not been great; the Indians did not have an
irrigating history; and very important and discouraging to

App. 263

the Government side was the physical situation which
precluded irrigation from the river at a reasonable cost
and the fact that the Government not only was prosecut-
ing no plans for such irrigation but had none.

The claim was made, as IJ recall it, for the total rea-
sonably irrigable area, 3,000 acres needing 37!/ second
feet of water.

As will be seen, the Government had a weak case. If
the court had had an opportunity to rule on it nothing
might have been given, especially unless a reasonable plan
for using some amount of water could have been aug-
gested. [sic] Since none such had been adopted, appar-
ently, either before or after the San Carlos Act, the case as
a case was weak.

The determinations of the settlement I think espe-
cially advantageous. The reservation is given enough
water for 1000 acres with a priority second only to that of
the Pimas. Also, since there is so little prospect of the right
being usable due to the physical situation of the lands on
the reservation and immediately above it and the re-
quirement of law that changes of point of diversion, etc.,
can only be made to the extent that they do not injure
others, a plan was devised and is embodied in the decree
whereby the Upper Valleys may get rid of the menace of
this right if the Indians wish to sell it.

Under this plan the right would be held merely as a
support to San Carlos Project and Upper Valley rights as
against other claimants in the stream, but would not be
used otherwise.

10. Under the idea that the San Carlos Reservoir should
be made to inure in part to the benefit of the Upper

4

App. 264

Valleys, this benefit, which is given by the substituted
storage plan, would have to be paid for: (a) by the lands in
the San Carlos Project which must pay for the reservoir,
(b) by the United Stated in providing the money for the
reservoir either at low or no interest and a part of whose
plan probably was to protect these Upper Valleys or (c) by
the Valleys themselves.

Accordingly the Government field men suggested a
payment of $10 an acre by those Upper Valley lands which
would amount to $407,000. This payment was never
regarded by the Government men as a very desirable
thing. It would not go far in paying for the reservoir and it
would tend to give the Upper Valleys a stronger claim in
any further developments of the river then [sic] they
would otherwise have. Accordingly, when the Upper
Valleys, in later stages of negotiations, refused firmly to
make this payment it was not insisted upon. Later devel-
opraents looking to flood control on the upper parts of the
river tend to show that this decision was a wise one. |

11. The plan of allowing the Upper Valleys to get rid of
the menace of this San Carlos Indian right, if the Indians
cannot use it themselves and for that reason or otherwise
want to sell, of course need not adopted. Equally of course
the suggestion of a price was not meant to preclude asking
more. Also the provisions of the decree with respect to this
right are meant to enlarge its usefulness and salability
and provide a market for it beyond those the Government
representatives thought ordinarily would be available.

12. That feature of the decree which embodies the
settlement of water rights made by the Secretary of the
Interior under the act of 1916 and the designations made
thereunder, and made by the formation of the Florence-Casa

App. 265

Grande Project and the San Carlos Project with their
appropriate contracts, is of course retained in the latest
draft. It is mentioned here because of its importance.

The pleading in the amended complaint as it affected
the Pima reservation was directed to supporting a large
early right for the Indians and making it available where
it could be best used. The legislative authorization was to
construct the San Carlos Reservoir “for the purpose, first,
of providing water for their irrigation of lands allotted to
Pima Indians on the Gila River Indian Reservation,
Arizona, now without an adequate supply of water * * * ”.
The Government men did not consider that any lands on
the reservation already were supplied adequately. So they
felt that all primary allotments should be given the benefit
of both the early priorities belonging to the reservation
and the stored water, and that the location of allotments
should be changed when necessary to make that physically
feasible.

In that way each allotted Indian would have one of his
two allotments under the stored and pumped water of the
project and with a share in the reservation’s earliest
rights. He would also enjoy the other benefits of the
project including the diversion and distribution system,
drainage, etc.

The [sic] bring this about it was deemed necessary to
devote the old rights in the Gila as distinguished from the
Salt, from which the Maricopa lands get their water, to the
project lands. This leaves the irrigation on the reservation
from the Gila below the project lands confined to techni-
cally secondary allotments and with later priorities.

I think this decision was a wise one and in fact the
only wise and practicable one in view of the implied

en
ee eT ee ee

App. 266

character of the right that was being set up and the
necessity, in fairness, to give all the allottees a share of the
project’s benefits.

I also think the plan adopted will work well. The
valuable but relatively small amount of irrigation on the
reservation below the project gets its water supply from
reoccurrence of water in the bed of the stream, return flow
and flows coming in below the project. As against the
Indian and White lands in the project, I think there can be
uses protected and made of first importance if the individ-
ual owners wish in respect to their allotments in the
project and if that should ever be necessary. And as
against claimants below the reservation I see no difficulty
in defending those particular uses. Return flows after the
project Indian lands are under full irrigation should give
these lands below a greatly increased supply. The use of
such flows to extend the acreage there should only be
made, however, after carefully considering the waters [sic]
quality, its permanence, and the reservation’s rights to it
as against diverters below the reservation.

13. The substituted storage plan is applied in part to the
few non-project water rights between the Coolidge Dam
and the Ashurst-Hayden Diversion Dam. The payment
provided for in Mr. Morton’s draft has been eliminated to
conform to its elimination as to the Upper Valley lands.

14. As to the power of the Secretary of the Interior and
the Attorney General to consent to the entry of this decree,
containing as it does the substituted storage plan and the
power of the court to enter it on such consent there is
perhaps some room for doubt. As to this, a purely legal
question, the Department of Justice and the Court are the
better judges. It seems to me, however, that the Act of May

App. 267

18, 1916, which gave the Secretary of the Interior the
power to settle rights in water to be diverted at the
Ashurst-Hayden Diversion Dam; the San Carlos Act, the
5th section of which authorizes the Secretary to do all acts
necessary to carry that statue into effect; the general
power of the Secretary over Indian Affairs; the larger
inherent powers of the Attorney General to conduct and
settle litigation in which the United States is involved; all
coupled with the court’s own authority, make the decree a
proper one to enter.

I have no doubt Congress itself would authorize it if
that were necessary.

15. In a suit, of the magnitude, as to the numbers of
persons interested and the cumbersomeness of this one,
there is always great difficulty in handling the parties. If
we followed ordinary-rules strictly, doing so would take
unending time and probably would be futile.

Still the parties must be disposed of and substantial
rights to be heard must be protected.

In this case we have difficulties in arranging the
settlement as such as to contain parties whose interests in
general are on the side of the United States but where
there is some doubt of the propriety of the United States
assuming to represent them. Here the questions are legal
ones and the solution, if to be found in legal procedure, is a
legal matter. Consequently here it is for the Department of
Justice to decide. I have discussed the matter somewhat at
length in a letter of mine of March 13, 1934, to Mr. Ward,
and herewith enclose copies. My letter suggests solutions.

16. As to further work on the settlement I think what is
needed, after I have gotten off my recommendation for

App. 268

further designations of lands in the San Carlos Project, a
thing I expect to be able to do with [sic] the next ten days,
is mainly court procedure which is for the other depart-
ment, coupled with such help as we of the Interior De-
partment, and the men of the San Carlos Irrigation and
Drainage District, and Mr. Elliott representing the Upper
Valleys, can give in the way of getting people to sign
stipulations and the like. Also, I take it we are perhaps
needed to stand by in case any explanations of the work-
ings of the substantial parts of the decree from a practical
standpoint are needed, and in case any need for rewording
those parts arises.

17. We all, in the field, regret that we cannot now pre-
sent the decree in final form and in one document. That is
physically impossible at this stage. We, hope, however,
that Mr. Morton’s draft with the memoranda mentioned
above, and Mr. Elliott’s compilation of the wording of the
substance of the decree in its latest form minus the prior-
ity schedules, will be sufficient for present purposes. Mr.
Elliott some time ago sent Mr. Wathen copies of this
compilation and has just given Mr. Monahan one.

18. The final decree will be in the form and substance
thus indicated except for last moment minor corrections,
made only to express better the intent of the present form
and any minor changes made necessary to meet the
stipulations or the lack of them still outstanding.

What we need to know is whether this settlement
meets with the approval of both departments and whether
the Attorney General and the Secretary of the Interior will
sign the assent to its entering when the full draft with
disposition of parties can be presented.

App. 269

19. I recommend this settlement, and think it would be
unwise to attempt to change it in substance at this late
stage except for weighty reasons.

Respectfully submitted,

John F. Truesdell
Acting District Counsel

JFT:md
Copy by F:S.

App. 270

APPENDIX 13

IN THE DISTRICT COURT
OF THE UNITED STATES

FOR THE DISTRICT OF ARIZONA

THE UNITED STATES OF +)
AMERICA, | ! IN EQUITY
Plaintiff, ) NO. E-59-GLOBE
vs. ) MOTION TO
GILA VALLEY IRRIGATION ) DISMISS CERTAIN
DIST., ET AL, ) DEFENDANTS
Defendants.

Comes now the plaintiff, through its solicitor, Clifton
Mathews, United States Attorney, and informs the Court
that the following named persons were made parties
defendant to this action through inadvertence and mis-
take, to-wit:

Castlio 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 Shriver;
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.

The Court is also advised that said persons are not
necessary parties to this suit for the reasons:

App. 271

1. That all but six have no interest of any sort,
and that the other six are outside the scope
of the suit as defined in the Amended Com-
plaint.

2. That none of them have filed, answered or
appeared in any way in said action.

The Court is further advised that the following named
parties defendant were also brought into the action
through inadvertence and mistake or because they have
transferred their interests to others who are made parties
defendant, and that they and each of them are not neces-
sary parties herein and should be dismissed, to-wit:

W.B. Barham; J.M. Biddle; Mary W. Bradshaw;
Jackson Branaman; Martha M. Brockway; Fred
D. Carpenter; E.D. Chandler; Dessa Harbison;
Jim Harper; Jacob Helfenstein; A.S. Henry; Mrs.
Alice Huntsman; John A. Jobnson; A.E. Keoler;
T.A. Lonergan; Clara B. McFarland; Gordon
McMurray; William C. McNatt; R.B. Maley; Mar-
tha M. Merrill; Estate of Lizzie B. Murphy, W.F.
Murphy, Sr., Administrator; John Nash; Ansel
Phelps; Georgiana Phelps; George W. Sheerer;
Chas. D. Stahlberg; Glodine Stahlberg; Phoebe
E. Templeton; Estate of Jose Vasquez, Charles F.
Bennett, Administrator; Albert Warren; Alice E.
Nixon; Virginia Griffin; Horace J. Johnson; Mary
Johnson; Lula O. Lockerd; and John C. Swan.

The Court is also informed that the following persons,
to-wit:

Henry W. Blough, John F. Brown; Fred E. Gack;
John MacGregor Goodale; Frank E. Hamilton;
Frederick K. Kratzka; J.T. Lewis; James F.
McManis; George W. Morrell; John O’Brien;
Margaret T. Randall; Jennie Roberts; Earl F.

EL LIN RN

App. 272

Smiley; Ole H. Smith; A.W. Sydnor; M.E.
Templeton; Bart Vidans; Fannie Wallrich; W.G.
Williams; and S.H. Wynn

were made parties defendant, but have never appeared or
answered, and that since they were made parties defen-
dant, their lands have been embraced within the San
Carlos Irrigation and Drainage District; that by contract
with the United States their and each of their lands have
been taken into and designated in its San Carlos Indian
Irrigation Project, and that their interests are therefore
represented by the said district and the United States, the
plaintiff herein, and their and each of their rights are set
up and provided for in said decree by reason of such
representation, and that they and each of them are there-
fore not necessary parties defendant herein.

The plaintiff also advises the Court that, the Estate of
Della Tharp, Edward Tharp, Administrator and the Estate
of James Tharp, Edward Tharp, Administrator, were
made parties defendant herein. That neither of said
estates as parties defendant or otherwise, have answered.
That their and each of their lands were by contract made a
part of the Florence Casa Grande Project; that their
interests have been and are represented in this action by
the Florence Casa Grande Water Users’ Association and
the United States, the plaintiff; that their interests are
provided for and set up in the Priority Schedule in the
proposed decree.

Basing its motion on the records herein and on the
grounds hereinbefore stated, the plaintiff moves that the
Court make an order dismissing this action and the
Amended Complaint without ‘prejudice as against the
following persons:

App. 273

Castlio 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 Shriver;
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.

Also that an order of Court be made dismissing the
suit and plaintiff's Amended Complaint without prejudice
as against the following defendants:

W.B. Barham; J.M. Biddle; Mary W. Bradshaw;
Jackson Branaman; Martha M. Brockway; Fred
D. Carpenter; E.D. Chandler; Dessa Harbison;
Jim Harper; Jacob Helfenstein; A.S. Henry; Mrs.
Alice Huntsman; John A. Johnson; A.E. Keoler;
T.A. Lonergan; Clara B. McFarland; Gordon
McMurray; William C. McNatt; R.B. Maley; Mar-
tha M. Merrill; Estate of Lizzie B. Murphy, W.F.
Murphy, Sr., Administrator; John Nash; Ansel
Phelps; Georgiana Phelps; George W. Sheerer;
Chas. D. Stahlberg: Gledine Stahlberg; Phoebe
E. Templeton; Estate ef Jose Vasquez, Charles F.
Bennett, Adminisiratwr; Albert Warren; Alice E.
Nixon; Virginia Griffin; Horace J. Johnson; Mary
Johnson; Lula O. Lockerd; and John C. Swan

upon the ground that they have no interest and that they
are not necessary parties defendant herein.

The plaintiff also requests the Court to make an order
dismissing the suit and Amended Complaint as against
the following named defendants:

al

App. 274

Henry W. Blough, John F. Brown; Fred E. Gack;
John MacGregor Goodale; Frank E. Hamilton;
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; MLE.
Templeton; Bart Vidans; Fannie Wallrich; W.G.
Williams; and S.H. Wynn

upon the grounds that they have never answered or
otherwise made a defense or plea to the Amended Com-
plaint and that they are not necessary parties defendant,
as individuals, because they and their interests are repre-
sented herein by the San Carlos Irrigation and Drainage
District and the plaintiff herein, all as stated hereinbefore.

Plaintiff also moves the Court to dismiss this suit and
Amended Complaint herein as against the Estate of Della
Tharp, Edward Tharp, Administrator and Estate of James
Tharp, Edward Tharp, Administrator, upon the grounds
that they are not necessary parties for the reasons herein-
before in this motion stated.

Dated this 30th day of March, 1935.
/s/ Clifton Mathews

Clifton Mathews, Esq.,
United States Attorney,
Solicitor for the plaintiff

App. 275

APPENDIX 14
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF ARIZONA

THE UNITED STATES OF _)
AMERICA, |
Plaintiff, IN EQUITY
“ \ NO. E-59-GLOBE
GILA VALLEY IRRIGATION) ORDER DISMISSING
DISTRICT, ETAL, | CERTAIN DEFENDANTS
Defendants. )

This cause coming on to be heard upon motion of
Clifton Mathews, solicitor for the plaintiff, requesting the
dismissal of certain parties defendant from this action, for
the reasons among others, that; the parties in said motion
named and hereinafter named were made parties defen-
dant, through inadvertence and mistake, and

That their, and each of their, interests, if any, in the
issues involved in this action are outside the territorial
scope of this suit as it was and is defined in the Amended
Complaint, and

That said and each of such parties are not necessary
parties defendant to this suit, and

That each of the said and hereinafter named, parties
have, through their attorneys, stipulated that they be
dismissed as parties defendant.

The Court, being fully advised in the premises, finds
that each and all of the hereinafter named parties are not
necessary parties defendant herein, and accordingly it is
ordered that those certain defendants hereinafter listed

App. 276

and each of them be and they are hereby dismissed as
parties defendant in this cause without prejudice.

The parties to whom this order applies are:

S. B. Blake; Cluff & Mitchell; Colvin-Jones Con-
solidated 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 Pack-
ard; N. E. Platt; W. E. Posy; S. A. Powell; Pursley
& Hash; Mrs. Mary Reynolds; Bert E. Rose;
Smithville Extension Canal Company; Cinaco
Tolles; E. L. Tidwell; Louis Voelckel; W. J.
Walton; T. W. Wamslee; Estate of 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; Consolidated Ca-
nal Company; J.H.T. Cosper; Cosper-Wilson Ca-
nal Company; Ethel M. Cunningham; E. C.
DeMoss; Double Circle Cattle Company; Thomas
Edwards; Bonnie Elrage; Mangus Elrage; Mrs.
Geo. J. Filleman; J. J. Filleman; Franklin Canal
Company; Fred J. Fritz; Mrs. Katie Fritz; Furr &
Blain; Harve X. Gatlin; Gila Ranch Company;
Greenhorn Ditch Company; Greenhorn Irrigating
Canal; County of Greenlee; O. C. Greenwell; Ole
Hagan; William F. Hagan; S. P. Hale; Francolle
Heywood; Mrs. Clara Hicks; County of Hidalgo;
Hill Ditch; Francis M. Hodges; Lettie F. Hunt; M.
J. Jensen; M. L. Jensen; D. L. Johnson; F. E.
Johnson; R. S. Johnson; A. L. Jones; J. H. Jones,
Sr., Estate; Martin & Pearson Ditch; Martin &

App. 277

Pearson Irrigating Canal Company; Arven
Mortensen; T. J. Nations; G. C. Payne; C. V.
Peery; T. M. Peters; Dell M. Potter; Fred Powell;
R. Richardson; Romney Brothers; Romney &
Lunt; Rucker Ditch; School District No. 30; J. M.
Smolloy; A. F. Smith; The Estate of Spoon, Ire L.
Spoon, Adm.; A. G. Stevenson; W. R. Stevenson;
Sunset Irrigating Canal Company; W. Plune
Tibbots; H. P. Trainor; Virden Ward; Ward &
Courtney Dam Company; T. M. Williamson;
State of New Mexico.

Also:
Phelps Dodge Corporation; Arizona Copper Com-
pany,

Also:
Morenci Water Company;

Also:

Aztec Mutual Canal Company; James LeRoy
McCarthy; Richard E. Geyler; Frank C. Elwell.

It is further ordered that the answer of each of said
defendents [sic] who may have filed one herein, be and the
same is hereby dismissed without prejudice and shall
stand as if never filed.

Dated this 30th day of March, 1935.

/s/ [Illegible] Jacobs
Judge of the United States
District Court, in and for
the District of Arizona.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1428%3A5. Public record. Not legal advice.