Report of the Joint Select Committee on Arizona General Stream Adjudications

              REPORT
OFTHE
JOINT SELECT COMMITTEE ON
ARIZONA GENERAL STREAM
ADJUDICATIONS
PRESENTED TO:
SPEAKER OF THE HOUSE, MARK KILLIAN
PRESIDENT OF THE SENATE PRO TEMPORE, PAT WRIGHT
DECEMBER 9,1994
ARIZONA STATE LEGISLATURE
RESEARCH STAFF
MEMO
Susan Anable
Senate Research Analyst
Dan Shein
House Research Analyst
TO:
DATE:
Re:
PRESIDENT OF THE SENATE PRO TEMPORE, PAT WRIGHT
SPEAKER OF THE HOUSE OF REPRESENTATIVES, MARK KILLIAN
MEMBERS OF THE JOINT SELECT COMMITTEE ON ARIZONA
GENERAL STREAM ADJUDICATIONS
December 8, 1994
Report of the Joint Select Committee on Arizona General Stream
Adjudications
Pursuant to the direction of Senate President Pro Tempore, Pat Wright and Speaker of the
House Mark Killian, please find attached a copy of the report of the Joint Select Committee
on Arizona General Stream Adjudications.
MEMBERS:
Senator Jim Buster, Co-chair
Senator Gus Arzberger
Senator Ann Day
Senator Peter Goudinoff
Senator Carol Springer
Senator Warren Austin Turner
Representative Russell Bowers, Co-chair
Representative Jack Brown
Representative Pat Conner
Representative Benjamin Hanley
Representative Becky Jordan
Representative Mark Killian
Ex Officio - Rita Pearson, Director, Arizona Department of Water Resources
TABLE OF CONTENTS
Page
I. Introduction and Background 1-2
II. Letter Establishing the Committee 3
III. Committee Members 4
IV. Meeting Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 5
V. Report of Committee Recommendations 6-7
Attachment
VI. State Statutes Pertaining to the Adjudications Process A
VII. Letters Indicating Membership Changes. . . . . . . . . . . . . . . . . . . . .. B
VIII. Table of Materials Presented to Committee Members C
(These materials are available in the Secretary of the Senate's office
and the House Chief Clerk's office as attachments to the minutes from
the respective meeting.)
IX. Committee Minutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 0
INTRODUCTION AND BACKGROUND
BACKGROUND
For the past twenty years, the State of Arizona has been involved in conducting the
general adjudication of water rights in two major water systems in the state, the Gila and
the Little Colorado River Systems. These adjudications are court determinations of the
status of all State law rights to surface water and all claims based upon federal law within
the river systems. As the result of a lengthy court battle in the early 1980s, the jurisdiction
of the State. Courts to adjudicate water rights, including Indian and federal reserved water
rights, was affirmed by both the U.S. Supreme Court and the Arizona Supreme Court. The
state statutes that currently govern the adjudications process can be found in Title 45,
Chapter 1, Article 9 (ARS 45-251 ET.SEQ.). (See Attachment A)
According to the Arizona Department of Water Resources (ADWR), there have
been 67,721 water right claims (statements of claimant) filed in the Gila River system and
11,207 in the Little Colorado River system. However, each statement of claimant may
claim more than one water use, consequently there are a total of almost 100,000
adjudication water use claims in both river systems (85,267 in the Gila River system and
12,635 in the Little Colorado River system). The claimants include cities, mines, irrigation
districts, farmers, utility companies, water companies,state .and federal land management
agencies, and Indian tribes.
Through a final court decree, the court will determine whether or not a claimant in
the adjudication has a legal right to use the water claimed and the exact quantity and
priority of that right, relative to other adjudicated water rights. To date, not a single decree
had been issued by the courts adjUdicating a single water right in Arizona.
JOINT SELECT COMMITTEE ON ARIZONA GENERAL STREAM ADJUDICATIONS
On February 25, 1994 the Speaker of the House, Mark Killian and the President of
the Senate Pro Tempore, Pat Wright, appointed a select committee of senators and
representatives to initiate discussions on expediting the Gila River Adjudication and Little
Colorado River adjudication. The committee was given three specific tasks:
1. To establish the public and private resources which have been expended in the
adjudications process since their inception and to estimate and establish a timeline
of how long these proceedings are likely to continue without a change in existing
procedures.
2. To determine what changes can be made to the adjudication statutes and rules
which would simplify and help expedite the adjudications process, while mitigating
the burdens imposed on all parties; and
1
3. To determine what changes should be made to the surface and groundwater codes
in Arizona resulting from the amount of litigation necessary to adjudicate water
rights.
The select committee was directed to begin gathering information as soon as
possible and to hold public hearings. The select committee held six meetings in 1994.
During these public hearings, the committee heard from many parties involved in the
adjudications including small and large claimants, ADWR, the Chief Justice of the Arizona
Supreme Court, and the Office of the Solicitor - Department of the Interior.
At the first committee meeting on May 10, 1994, interested parties were asked to
submit suggestions for improving the adjudications by June 1, 1994. In subsequent
meetings, the committee considered various suggested proposals and heard testimony
from interested parties.
On September 7, 1994, the committee approved its first set of recommended
concepts which included recommendations for:
• Establishment of a de minimis use standard and the summary adjudication of the
de minimis water users in the adjudications,
• Representation by non-attorneys in the state's general adjudication proceedings,
• Recognition of the state's authority to determine any public trust values in the
adjudications, and
• Recognition of a presumption of validity of pre-1919 water rights claims.
The final meeting to adopt recommendations was held on November 22, 1994. At
this meeting, additional recommendations, in concept, were adopted by the committee
that would:
• Establish ways to more efficiently manage the adjudication process and relieve
ADWR of unnecessary work,
• Revise the adjudications process in order to reduce the amount of litigation
necessary to complete the adjudications, and to reduce the financial burdens on the
complainants,
• Clarify ambiguous provisions of the state water code to answer questions without
having to litigate these ambiguities as part of the adjudications process,
• Assert that public trust values are not appropriately asserted through the general
stream adjudication process,
• Consider changes to the role of the Special Master in the adjudications process,
including the evaluation of informal negotiations being encouraged among impacted
parties through the creation of a settlement judge,
• Consider supplementing adjudication funds,
• Establish a permanent legislative oversight committee to monitor the progress of
the adjudications and the expenditure of monies, and
• Pass legislation that will: 1) be equitable, 2) be Consistent with the McCarran
Amendment, 3) provide long-term security to all water rights holders, and 4)
streamline the adjudication process.
2
J\ri;;:ona ~tah 'Pkgislatur£
1700 ~est ~tt15qiltgtalt
JI4o£nix, J\rizonn 85007
May 6, 1994
The Honorable Austin Turner
State Senator
1700 W. Washington
Phoenix, AZ 85007-2848
Dear Senator Austin:
On February 25, 1994 we created the Joi nt Select Commi ttee on Ari zona
General Stream Adjudications. This Committee originally consisted of the
following ten Legislative Members and one Ex-Officio Member:
Representative John Keegan, Cochairman
Representative Pat Conner
Representative Russell "Rusty" Bowers
Representative Jack Brown
Representative Benjamin Hanley
Senator Jim Buster, Cochairman
Senator Carol Springer
Senator Ann Day
Senator Peter Goudinoff
Senator Gus Arzberger
Director, Department of Water Resources, Ex-Officio
This letter is to notify you of the expansion of this Committee with the
addition of House Speaker Mark Killian and Senator Austin Turner.
The deadline for recommendations from the Committee is being extended from
June 1, 1994 to September 1, 1994. This extension will enable the Committee to
properly study this issue and allow for maximum public input.
The first meeting of the Committee is scheduled for Tuesday, May 10, 1994
at 1:00 p.m. in House Hearing Room 2.
Again, we appreciate your willingness to serve on this Committee and please
fee1 free to contact either one of us if you shoul d have any questions or
comments on the Committee or its mission.
Very truly yours, /) . .lee..c LU_i'l~Qld=-·
PAT WRIGHT I)
President Pro Tempore
Arizona State Senate
-~Jw~lC- • t
MAr(( W. KI LLI~
Speaker
Arizona House of Representatives
Itsn
JlICACIM.LM
3
JOINT SELECT COMMITTEE ON ARIZONA GENERAL
STREAM ADJUDICATIONS
MEMBERS:
Senator Jim Buster, Co-Chair
Senator Gus Arzberger
Senator Ann Day
Senator Peter Goudinoff
Senator Carol Springer
Senator Warren Austin Turner
*Representative Russell "Rusty" Bowers, Co-Chair
Representative Jack Brown
Representative Pat Conner
Representative Benjamin Hanley
*Representative Becky Jordan
Representative Mark Killian
Ex Officio - Rita Pearson, Director, Arizona Department of Water Resources
(*NOTE: Letters in Attachment B indicate membership changes. )
4
COMMITTEE MEETING DATES
May 10,1994
June 1,1994
June 21, 1994
July 19, 1994
September 7, 1994
November 22, 1994
5
CONCEPTS ADOPTED BY THE
JOINT SELECT COMMITTEE ON ARIZONA GENERAL
STREAM ADJUDICATIONS
DE MINIMIS USES
• Define "de minimis" uses of surface water as domestic and other small water uses
of 3 acre-feet of less per year, and as stockponds with a capacity of 15 acre-feet or
less.
• Require the court to summarily adjudicate claimants of a "de minimis" use of water
without requiring the claimant to take any additional action.
• Require any challenger to the claimant of a "de minimis" use to bear the burden of
proof by clear and convincing evidence.
• Provide that "de minimis" claims are an adjudicated right, a valid beneficial use, and
a vested property right.
NON-ATTORNEY REPRESENTATION
• Allow non-attorneys to represent water claimants in the general adjudications.
PUBLIC TRUST VALUES
• Recognize the Legislature's authority to determine public trust values, if any, in the
state's general stream adjudications. Clarify that public trust values are not
appropriately asserted through the general stream adjudications process.
. PRE-1919 WATER RIGHTS CLAIMS
• Provide that a person who claims a water right in a general adjudication that was
vested before March 26, 1919 is presumed to have a valid claim. Specify that any
person who contests such a claim shall bear the burden of proof by clear and
convincing evidence.
MORE EFFICIENT MANAGEMENT OF THE ADJUDICATIONS PROCESS
• Specify means for quantifying irrigation rights.
• Specify means for quantifying other rights.
• Establish the effect of prior water rights filings in determining the attributes of water
rights.
• Streamline the Hydrographic Survey Report process.
6
REDUCTION OF LITIGATION AND FINANCIAL BURDENS ON COMPLAINANTS
• Permit ADWR to propose the attributes of water rights.
• Permit ADWR to testify to the attributes of water rights at the request of any party.
• Automatically admit ADWR's report into evidence for claims under 5,000 acre-feet/
year.
• Permit claimants to rely on ADWR's report to prove their rights.
• Specify how rights are quantified.
• Permit water users to expeditiously file a late statement of claim.
CLARIFICATION OF AMBIGUOUS PROVISIONS OF THE STATE WATER CODE
• Clarify the role that the provisions pertaining to water rights forfeiture have on the
maintenance of water rights.
• Specify the effect that changes in use have on the maintenance of water rights.
• Specify the effect that administrative delays have on the establishment of water
rights.
• Afford historical water users that have not complied with filing requirements in the
state's water code the opportunity to validate their rights to the use of that water.
• Resolve water rights ownership issues on Federal and adjacent lands.
ROLE OF THE SPECIAL MASTER/APPOINTMENT OF A SETTLEMENT JUDGE
• Consider the role of the special master in the adjudications process, including
evaluating encouragement of informal negotiations among impacted parties through
the creation of a settlement judge.
• Evaluate the designation of a Superior court judge to address water litigation,
administer the adjudications process and appoint special masters as needed, in
order to expedite and reduce the costs of the adjudications.
FINANCIAL CONSIDERATIONS
• Express concern about the financial provisions pertaining to the adjudications
process.
• Consider supplementation of the adjudications funds.
LEGISLATIVE OVERSIGHT
• Establish a permanent legislative oversight committee to monitor the progress of
the adjudications and the expenditure of funds.
ATTRIBUTES OF ANY LEGISLATION PASSED
• Recognize that the adjudications process is complicated and has the potential to
profoundly affect the property rights of the water users of this state.
• Provide that any legislation passed should be equitable, should be consistent with
the McCarran Amendment, should provide long-term security to all water rights
holders and should streamline the adjudication process.
7
ATTACHMENT A
DISPosmON TABLE
Showing where the subject matter of sections repealed by Laws 1979, Ch.
139, § 38 was covered by new sections:
II1stork:aI and Statutory Notea
For impairment of obligations and nonsevera.- effective June 12. 1980. see Historical and Stat~
bility provisions of Laws 1980. 4th 8.S.• Ch. t. utory Notes preceding § 45-401.
614
Law Review Commentaries
Navajo water rights: Pulling the plug on the Papago water rights settlement: Right to
Colorado River? 16 Ariz. Bar J. No.5. p. 7 transfer water to different uses. 26 Ariz.LRev.
(1981). 421 (1984).
1980 Arizona groundwater management
code. Ariz.Slale L.J. 3. 1980. p. 621.
§ 45-252
For authorization for additional positiOns un·
der Laws 1981. Ch. 127. § 2. see Historical and
Statutory Notes preceding § 45-46 I.
For legislative intent regarding termination of
provisions added. or amended by Laws 198 I.
Ch. 176. see Historical and Statutory Notes
following § 45-478.
WATER RIGHTS ADJUDICATIONS
Ch.1
Law Review Commentaries
General water·rights adjudication in Arizona: Moore and John B. Weldon, Jr. 27 Ariz.L.Rev.
Yesterday. today and tomorrow. Mikel L. 709 (1985).
United States Supreme Court
Indian water rights. Right to intervene sub-- S.Ct. 3t3t. 462 U.S. 1146, 77 L.Ed.2d 1381,
sequent to adjudication of water rights. see Ari- implemented 104 S.Ct. 1900. 466 U.S. 144. 80
..,na v. California, 1983. 103 S.Ct. 1382. 460 LEd.2d 194.
U.S. 605,75 L.Ed.2d 318, rehearing denied 103
-,Laws 1919. Ch. 164. §§ 16.26.
Rev.Code 1928. §§ 3293. 3300.
Code 1939. §§ 75-114, 75-121.
A.R.S. fonner §§ 45-231, 45-238.
For impainnent of obligations and nonseven·
hility provisions of Laws 1980. 4th 5.5.• Ch. I.
effective June 12, 1980. see Historical and
Statutory Notes preceding § 45-401.
Hlatorical and Statutory Notes
615
. § 45-252. General adjudication: representation; superior court: assign­ment
to judge; petition
A. One or more water users upon a river system and source, the water
rights of which have not been previously adjudicated under this article and
administered by the director of water resources. or the state of Arizona upon
the request of any state agency other than the department of water resources
may file a petition to have determined in a general adjudication the nature,
extent and relative priority of the water rights of all persons in the river system
and source.
B. The attorney general shall represent the state of Arizona in connection
with all water claims asserted by this state. The director shall be represented
by legal counsel retained in accordance with section 45-104, subsection F.
C. The general adjudication shall be brought and maintained in the superior
court in the county in which the largest number of potential claimants resides.
The clerk of the court in which the petition is filed shall notify the supreme
court and the supreme court shall be responsible for assigning the general
adjudication to a superior court judge and appointing a master and for
consolidating the general adjudication with other pending general adjudica­tions,
if appropriate.
D. The petition for a general adjudication shall be captioned: "In re the
general adjudication of all rights to use water in the river system
and source" and shall request that the court determine the nature. extent and
relative priority of the water rights of all persons in the river system and
source.
Added by Laws 1979, Ch. 139. § 39. eff. April 24, 1979. Amended by Laws 1980. 4th
S.S., Ch. I, § 65. elf. June 12. 1980; Laws 1981, Ch. 176, § 2. elf. April 17. 1981; Laws
1992, Ch. 94. § 15.
45-245 ....
45-239 .
45-238 .
Haw
SectIona
45-259
. .... 45-252
45-257
.......... 45-257
45-259
45-240 None
45-241 None
45-242 45-257
45-259
................ 45-254
............ . .. 45-254
45-256
... 45-257
45-259
RepHled
section.
45-243 .
45-244 .
WATERS
Title 45
Repealed by Laws 1979, Ch. 139, § 38, eff. April .•
Repealed
5ectIona
45-231 .
45-235.
��5ectIona
.. 45-252
45-258
..................... 45-253
................. 45-256
.... 45-253
45-257
.......... 45-253
45-254
45-236 . . . 45-256
45-237 45-253
45-254
45-256
45-257
§§ 45-231 to 45-245
Repealed
§§ 45-231 to 45-245.
24, 1979
45-232 ....
45-233
45-234 ..
§ 45-251. Definitions
In this article, unless the context otherwise requires:
I. "General adjudication" means 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.
2. "Person" means an individual. a partnership, a corporation, a municipal
corporation, the state of Arizona or any political subdivision, the United States
of America, an Indian tribe or a community or any other legal entity, public or
private.
3. "Potential claimant" means all persons claiming water rights or on
whose behalf claims to water rights are asserted.
4. "River system and source" means aU water appropriable under § 45-141
and all water subject to claims based upon federal law.
Added by Laws 1979, Ch. 139. § 39. eff. April 24. 1979. Amended by Laws 1980. 4th
S.S.• Ch. I, § 64. eff. June 12, 1980; Laws 1987, Ch. 2, § 25, eff. Feb. 27. 1987.
§ 45-252
Jurlsdlctlon 3
Proof 4
Succeaon 5
Validity t
Vested rip..
§ 45-253. Service of summons; statement of claimant form; record
A. Personal service of the summons and petition shall not be required. The
court shall order that:
1. The clerk of the court issue the summons which shall specify the date by
which the statement of claimant must be filed. generally describe the nature of
the general adjudication and set forth such other information as may be
necessary or desirable in the circumstances. The form of the summons shall be
approved by the court.
2. The clerk of the court deliver the summons to the director who shall
make such copies and prepare such documents as may be necessary to effect
service. The director shall assist the court in determining the scope of
adjudication by recommending the portions of the river, its tributaries and any
other relevant sources subject to the adjudication and in development of a
statement of claimant form which shall include such duplicates as may be
necessary. Upon identifying the potential claimants pursuant to § 45-256,
subsection A, paragraph I, the director shall effect service on all known
potential claimants by mailing a copy of the summons by registered or certified
mail, return receipt requested, to such known potential claimants.
3. When the supreme court determines that the services of a master ap­pointed
pursuant to § 45-255 are no longer necessary and enters an order
terminating the appointment the clerk of the court shall reimburse the director
from the fund of fees paid by the claimants pursuant to § 45-254, subsection F.
for funds expended by the director in effecting service of process and any
subsequent notices to claimants. Reimbursement shall only be from monies
remaining in the fund after payment of the costs and expenses attributable to
the appointment of a master in accordance with § 45-255, subsection B.
617
incumbent upon intervener at such hearing, to
first prove that it had made an appropriation of
unappropriated waters. and then the extent
thereof; that is, the amount or quantity of water
beneficially used and the specific lands upon
which the waters were used. Gillespie Land &
Irr. Co. v. Buckeye Irr. Co. (1953) 75 Ariz. 377.
257 P.2d 393.
Plaintiff suing to establish water rights must
allege facts showing his appropriation to some
beneficial use prior to any adverse act by defen~
danL Daggs v. Howard Sheep Co. (1914) 16
Ariz. 283. 145 P. 140.
§ 45-253
5. Succeaon
A judgment against defendant developers of a
residential land as to respective rights of defenw
dants and plaintiff neighboring ranch owners in
relation to water rights in the area would bind
all persons who might subsequently succeed to
defendants' interest in the land. England v.
Ally Dng Hing (I 969) 105 Ariz. 65. 459 P.2d
498.
and, therefore, no right to raise the issue of
abandonment, but he did have the power to
make a decision as to whether a right had been
abandoned if the question of abandonment was
raised by one of the parties to a conflict hearing
conducted by the Department under § 45-231
et seq. (repealed; see, now, § 45-251 et seq.)
Op.Auy.Gen. No. 74-18-L.
Once decree or judgment by a court concern­ing
right to appropriate surface waters was
made, State Land Department relinquished its
jurisdiction of the surface water covered by that
decree, and subsequent evaluation of beneficial
use of water granted by decree was reserved to
special officers appointed by the courts under
the existing judgment. Op.Atty.Gen. No. 73­37-
L.
4. Proof
Where trial court, in suit to determine rights
in and to waters of river system. ordered. a
preliminary hearing to determine extent. priori­ty
dates and status of intervener's claims to
appropriation. and use of. waters of river. it was
WATER RIGHTS ADJUDICATIONS
Ch. I
WESTLAW Electronic Research
See WESTLAW Electronic Research Guide following the Preface.
Law Review Commentaries
Water resources management-a proposed
statute. 19 Ariz.L.Rev. 719 (1977).
Library References
Waters and Water Courses $033.
WESTLAW Topic No. 405.
CJ.S. Waters § 194 et seq.
Cross References
Water rights registration, see § 45-181 et seq.
Notes of Decisions
further rights for appropriation since to do so
would be beyond its legal authority. St. Johns
Irr. and Ditch Co. v. Arizona Water Commission
(1980) 127 Ariz.App. 350. 621 P.2d 37.
3. Jurlsdlcllon
Superior court did not have subject· matter
1; Validity jurisdiction over action for declaration of righu:
with respect to ditch located in county and
Section 45-252 requiring Supreme Court to waters from particular creek divened through
assign proceedings for adjudication of water ditch to lands owned by dozens of property
rights to judge of superior court. which requires holders where there was already pending in
proceedings to be filed in superior court, does another county general adjudication of water
not unconstitutionally expand original jurisdic- rights in watershed. where parties to declarato­tion
of Supreme Court. since superior court has ry judgment action were noticed as claimants in
original jurisdiction under ConsL Art. 6. § 5. prior action. and where prior action was indu­U.
S. v. Superior Court In and For Maricopa sive of all issues raised in declaratory judgment
County (1985) 144 Ariz. 265. 697 P.2d 658. complainL Gabel v. Tatum (App.1985) 146
1. Vested rlshts Ariz. 527. 707 P.2d 325.
Special action relief was properly ordered in Supreme Coon would accept jurisdiction.of
favor of water companies. who were owners of petitions for special action by the United Swes
vested water riabts in the waten of a river by and Indlsn triba chalqnl jwUd1<tion ci
reason of a court decree, prohiblti"l water ....te courta to ad~claims to water riP
commission from actina upon or arantina fur. in certain rivers and attackinl statutorY proee­ther
water rishts in waten of the river. in that dures for adjudication of such clalma, .­the
evidence wu sufficient to sustain the find- thoup. action arooe &om denial of _ to
ina that walers of the river had been Cully ap- dismiss. since questions presented were pure
propriated by reason of the cnun decree and issues of law. since casc had been pendinc !or
that there was no additional water available for more than ten yean, and since approxim8teIY
at 80.000 claimants had been served in cUd
appropriation. and by reuon of statutes. tri brought under same statute. U.S. v. Superior
cnun was empowered to detenninc that there Cour1 In and For Maricopa County (1985) 1401
;:sa:~~:'~chh~~e:~~~~= ~:~i~~: Ariz. 265. 697 P.2d 658.
upon commission, and thus commission could State Land Commissioner had no power to
not derogate such determination by granting administer water rights under a court decree
616
United States Supreme Court
Navigable rivers. Ownership of underlying Corvallis Sand and Gravel Company v. Oregon
land. law governing. see Oregon State Land State Land Board. 1977,97 5.Ct. 582, 429 U.S.
Board v. Corvallis Sand and Gravel Company: 363, SO L.Ed.2d 550.
618
Ubrary References
§ 45-254
Notes of Decisions
parties were experi memal merely and subject to
change as conditions might require, and that
users of water might apply for a modification
thereof upon such application for modification,
notice was be served upon all the appropriators
and users of water, giving them an opportuniry
to be heard either in suppon of or in opposition
to the application. Taylor v. Tempe Irrigating
Canal Co. (l92() 21 Ariz. 574. 193 P. 12.
Potenlial claimants I
WATER RIGHTS ADJUDICATIONS
Ch.l
J. Potenlial claimants
Where a decree in a proceeding to determine
water rights for irrigation purposes stated that
the court retained jUrisdiction and that the
amounts of water apportioned to each of the
619
§ 45-254. Statement of claimant; mlng; Information to be Included; veri­fication;
failure to me; fees
A. Each potential claimant who is served shall present in writing the
particulars of his claim on the court-approved statement of claimant form and
shall file the statement of claimant form with the court within ninety days of the
date of service, unless otherwise ordered by the court. The court may extend
the time for good cause. A duplicate of each statement of claimant shall be
made available by the clerk of the court to the director.
B. The statement of claimant form may be filed by a person on behalf of its
members or users and shall constitute the required filing of its members or
users.
C. The statements of claimant shall include the following information.
where appropriate:
1. The name and mailing address of the potential claimant.
2. The name of the specific river, stream, tributary. wash or other source
from which the right to divert or make use of water is claimed.
3. The quantities of water and the periods of time during the year for which
use is claimed.
4. If distributing works are used or required. the date of beginning and
completion of construction or of enlargements and the dimensions of the ditch
as originally constructed and as enlarged.
5. If the use is for inigation, the amount of land reclaimed the first year and
in subsequent years, and the amount and general location of the land. the
character of the soil and the kind of crops cultivated.
6. The legal description of the point or points of diversion and place of use
of the waters to the nearest forty-acre tract or by other appropriate description
and such map or plat showing the relative points of diversion and place of use
as may be required.
7. The purpose and extent of use.
8. The time of the initiation of the right and the date when water was first
used for beneficial purposes for the various amounts and times claimed in
paragraph 3 of this subsection.
9. The legal basis for the claim.
aeYlHr'.Notes:
1979 Note. Pursuant to authority of �� 41­1304.02.
subsection A. paragraph 3 was relet­tered
as subsection B and placed after subsec­tion
A. paragraph 4. Subsection A, paragraph 4
was renumbered as paragraph 3 and subsecuon
B was relettered as subsection C.
1988 N_. Pursuant 10 authority of § 41­1304.02.
in the section heading a semicolon ~
substituted for the comma after "summons .
Historlc:al and Statutory NoleS
Ch. 176. see Historical and Statutory Notes
So~': 1919. Ch. 164. §§ 17. 19 to 21 [18 to follow;ng § 45-478.
20]. 24. 25 [23. 24].
Laws 1921. Ch. 64. §§ 5. 7 to 9. 12. 13.
Rev.Code 1928, §§ 3294. 3296. 3297. 3299.
Code 1939. §§ 75-115. 75-117. 75-118. 75-
A.~2g: fonner §§ 45-232, 45-234. 45-235.
45-237.
For impainnent of obligations and nonsevera­bility
provisions of Laws 1980. 4th 5.S.• Ch. I,
effective June 12. 1980. see Historical and Stat­utory
Notes preceding § 45-401.
For legislative intent regarding tennination of
provisions added or amended by Laws 1981.
CnJdIS References
General adjudication fund. source or funds, see § 45-260.
Waters and Water Courses _33.
WESTIAW Topic No. 405.
CJ.S. Waters § 194 el seq.
§ 45-253 W~~~
B. At the time of commencement of mailing of service of process on known
potential claimants, the director shall effect service on all unknown potential
claimants by publication of the summons at least once a week. for fo~
consecutive weeks in a newspaper published In each of the counties WIthin
which interests in and to the use of water may be affected by the general
adjudication.
C. The director shall publicize the general adjudication through the elec­tronic
media and in general circulation newspapers.
D. The court shall direct the director:
1. To return the original summons to the clerk of. the court with an
endorsement of the dates on which mailing and publication were completed.
2. To maintain a true and accurate record of the names and addresses of ~
persons who have in fact been served by registered mail. return receipt
requested. Any such record. together with all supporti~g documents. shall
constitute the records of the court which shall be subject as such to the
supervision and control of the court.
Added by Laws 1979. Ch. 139. § 39, eff. April 24. 1979. Amended by Laws 1980. 4th
5.5.. Ch. 1, § 66, eff. June 12, 1980: Laws 1981. Ch. 176, § 3, elI. Apnll7, 1981; Laws
1988, Ch. 75. § 1.
620
Historical and Statutory Notes
UbnIry Ref.-
§ 45-256
Notes of Decisions
to make statement of their claim and barring all
claims not in compliance with this section, even
though infonnation provided does not include
that required to support claims based on state
law. and thus. this section does not violate
Canst. Art. 4, Pt. 2, § 19 prohibiting legislature
from enacting local or special laws. U.S. v.
Superior Court In and For Maricopa County
(1985) 144 Ariz. 265, 697 P.2d 658,
Notes of DecIsions
judgments do nOt infringe upon constitutional
powers of Supreme Court to make procedural
rules. since grant of such power does not pre-vent
legislature from enacting supplementary
provisions. U.S. v. Superior Court In and For
Maricopa County (1985) 144 Ariz. 265, 697 P.2d
658.
WATER RIGHTS ADJUDICATIONS
Ch. 1
Validity 1
I. Validity
Since federal law is supreme. claims based on
water rights granted by federal law, including
implied right of Indian reservation to water
~h:h~~~I"V~~oe:;~c~a:~~~ilfbe~uffici;~~
under this section requiring all water claimants
Validity I
I. Validity
Provisions of §§ 45-255, 45-257 and 45-259
:~~in~l: ~f':~d=:~ ~dm:rr:t :rp~~;
Cross References
Nonapplicability of administrative refund for erroneously paid fees. see § 45-113.
Reference *='76(1).
WESTLAW Topic No. 327.
CJ.S. References §§ 220, 221.
Historical and Statutory Notes
For impainnent of obligations and nonsevera- effective June 12, 1980, see Historical and Stat­bility
provisions of Laws 1980. 4th 5.5., Ch. 1. utory Notes preceding § 4~01.
Library References
§ 45-256. TeclmIc:aI assistance of dIrector; report
A. The court or the master shall request technical assistance from the
director in all aspects of the general adjudication with respect to which the
621
, § 45-255. Appointment of master; compensation
A. After the time for filing all statements of claimant has expired. the
supreme court may. and in any case where there are more than one hundred
potential claimants shall, appoint a master under rule 53 of the Arizona rules of
civil procedure to report on all legal and factual issues. If a master is to be
appointed. the supreme court may select the master from a list of penlons
which shall be expeditiously submitted by the director.
B. The master's compensation and expenses shall be fixed by the court and
paid out of the fund of fees paid by the claimants pUnluant to § 45-254.
subsection F. In the event such fund of fees is insufficient. the master's
compensation and expenses shall be paid from funds equitably assessed by the
court in its discretion against the claimants.
Added by Laws 1979. Ch. 139, § 39, eff. April 24, 1979. Amended by Laws 1980. 4th
5.5.• Ch, i, § 68, eff. June 12, 1980.
For impainnent of obligations and nonsevera~
bilily provisions of Laws 1980. 4th 5.S.• Ch. 1.
effective June 12, 1980. see Historical and Stat­utory
Notes preceding § 45-401.
For legislative intent regarding termination of
provisions added or amended by Laws 1981,
Ch. 176, see Historical and Statutory No'"
following § 45-478.
§ 45-254 WATERS
TItle 45
D. The statement of claimant shall be verified by the claimant or the perso
authorized to file as provided in subsection B.
E. Any potential claimant properly served who fails to file a statement of
claimant in accordance with the requirements of this article shall be barred and
estopped from subsequently asserting any right theretofore acquired upon
river system and source and shall forfeit all rights to the use of water in the
river system and source theretofore claimed by him. Any potential claimant
who did not have actual knowledge or notice of the pendency of the proceed.
ings may. at any time within one year of the date, as set forth in the summons.
by which statements of claimant must be filed. move to intervene in the general
adjudication. if his motion to intervene contains all mattenl required of claim­ants
and an affidavit that the intervenor had no actual knowledge or notice of
the pendency of the proceedings. Such motion to intervene shall be granted
upon such terms as are equitable. and the movant thereafter shall have the
rights of a claimant in the general adjudication.
F. The fee for filing a statement of claimant by an individual is twenty
dollanl and by a corporation. municipal corporation. the state or any political
subdivision. an association or partnenlhip is two cents for every acre-foot of
water claimed. or twenty dollan;. whichever is greater. The director shall
review the statements of claimant and the amount of fees paid as to each and
report to the court or master the sufficiency of the fees paid with respect to
each statement of claimant. A claim shall not be considered by the court or the
master unless all fees with respect to such claim have been fully paid in
accordance with the provisions of this article. Fees shall not be imposed upon
any Indian tribe. community or allottee penlonally appearing in the general
adjudication to assert claims to water.
Added by Laws 1979. Ch. 139. § 39. eff. April 24. 1979. Amended by Laws 1980. 4th
5.5., Ch. 1. § 67, eff. June 12. 1980; Laws 1981, Ch. 176. § 4. eff. April 17. 1981.
Waters and Water Counes _12.
WESTLAW Topic No. 405.
CJ.S. Waters §§ 174, 180.
Source:
Laws 1919, Ch. 164, §§ 20,21 (19, 201, 24, 25
[23, 24]. 32, 33.
Laws 1921, Ch. 64. §§ 8, 9, 12, 13.
Rev.Cod. 1928, §§ 3297, 3299, 3305. 3306.
Code 1939, §§ 75-118, 75-120, 75-126, 75-
127. '
A.R.S. fonner §§ 45-235, 45-237, 45-243,
45-244.
Croa Refe""""",
Nonapplicability of administrative refund for erroneously paid fees. see § 45-113.
Cross References
Service of process on potential claimants. see § 45-253.
necessary to ensure that adequate notice is given. that the preliminary report is
sufficiently available for inspection by the water claimants and that provisions
are made for adequate time and procedure for comment on the preliminary
report.
Added by Laws 1979, Ch. 139, § 39, elI. April 24, 1979. Amended by Laws 1980, 4th
5.5., Ch. 1, § 69, elI. June 12, 1980.
§ 45-257. Hearings. report of master; final judgment by court; adminis­tration
and enforcement of decree
A. The master shall:
1. After due notice. conduct such hearings and take such testimony as shall
be necessary to determine the relative water rights of each claimant.
2. Prepare and file with the court a report in accordance with rule 53(g) of
the Arizona rules of civil procedure, which shall contain findings of fact and
conclusions of law. Each claimant shall have the right to file with the court
written objections to the master's report within one hundred eighty days of the
date on which the master's report was filed with the court.
3. Maintain under his control all records and documents at such locations
as may be designated by the court.
B. The court, upon review of the master's report and in accordance 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 when rights
to the use of water or dates of appropriation have previously been determined
in a judgment or decree of a court, the court shall accept the determination of
623
§ 45-257
For impainnent of obligations and nonsevera­bility
provisions of Laws 1980. 4th 5.S.• Ch. 1.
effective June 12. 1980. see Historical and Stat­utory
Notes preceding § 45-40 I.
Notes of Decisions
doing so would be so prohibitive that it would
impair or prevent assertion of claims. any party
could receive service of every document by in­forming
court and being placed on court-ap-proved
mailing list. and other panies could
keep themselves updated by consulting or sub­scribing
to monthly docket sheets. Matter of
Rights to the Use of the Gila River (1992) 171
Ariz. 230, 830 P.2d 442.
Hlstorlc:a1 and Statutory Notes
A.R.S. fonner §§ 45-233, 45-236, 45-237.
45-244.
WATER RIGHTS ADJUDICATIONS
Ch.l
Doeumeat DIlnp 1
Source:
Laws 1919, Ch. 164, §§ 18. 23 to 25 [22 to
24J,33.
Laws 1921, Ch. 64, §§ 6, 11 to 13.
Rev.Code 1928, §§ 3295, 3298, 3299, 3306.
Code 1939, §§ 75-116, 75-119, 75-120. 75-
127.
1. Document D1lnp
Due process did not require each party to
water rights adjudication to serve copy of every
filed document on each of the approximately
24,000 other parties to the litigation: cost of
§ 45-256
director possesses hydrological or other expertise.
assistance, the director shall expeditiously:
1. Identify the hydrological boundaries of the river system and source and'
the names and addresses of all reasonably identifiable potential claimants. In
identifying potential claimants, the director shall, at a minimum, identify as far .
as reasonably possible the current record owners of all real property within the ,;"
geographical scope of the adjudication. "
2. Locate, procure and make available all public and other records relevant'
to determination of any factual or legal issues. "
3. .conduct a general investigation or examination of the river system and
source.
4. Investigate or examine the facts pertaining to the claim or claims assert­ed
by each claimant.
5. Make a map or plat on a scale not less than one inch to the mile adequare'--..·
to show with substantial accuracy the course of the river system and source, the
location of the ditch or canal diverting water from such river system and
source, and the legal subdivisions of lands which have been irrigated or are
susceptible to irrigation from the ditches and canals already constructed.
6. Take such other steps and gather such other information as may be
necessary or desirable for a proper determination of the relative rights of the
partie~.
B. The technical assistance rendered by the director shall be set forth in
summary form on a claim by claim basis in a report prepared by the director
and filed with the court or the master, which shall then be available for
inspection by any claimant. Any claimant may file with the court or the master
written objections to the report or any part of the report within one hundred
eighty days of the date on which the report was filed. Those parts of the report
with respect to which no written objections have been timely filed may be
summarily admitted into evidence. Those parts of the report with respect to
which written objections have been timely filed shall not be admitted into
evidence until such time as each claimant who has filed written objections in a
timely manner shall have had a fair and reasonable opportunity to contest the
validity or admissibility of those parts of the report to which his objections were
directed. Each claimant who has filed written objections in a timely manner
shall also have a fair and reasonable opportunity to present evidence in support
of or in opposition to those parts of the report to which his objections were
directed, to present evidence in support of his claim and to make objections to
any other claim.
C. Prior to filing the report with the court or the master as provided in
subsection B. the director shall prepare a preliminary report. The director
shall give notice to each water claimant that the preliminary report is available
for inspection and comment. Upon expiration of the period provided for timely
comment, the director shall revise the preliminary report as may be appropri­ate
and shall file the report with the court or the master in accordance with
subsection B. The director shall adopt such rules and regulations as may be
622
(
Library References
§ 45-258. Repealed by Laws 1980, 4th S.S., Ch. 1, § 71, elf. June 12, 1980
Cross References
Appeals generally, see § 12-2101 et seq.
judgments do not infringe upon constitutional
powers of Supreme Court to make procedural
rules. since grant of such power does not pre­vent
legislature from enacting supplementary
provisions. U.S. v. Superior Court In and For
Maricopa County (1985) 144 Ariz. 265. 697 P.2d
658.
For legislative intent regarding termination of
provisions added or amended by Laws 1981.
Ch. 176, see Historical and Statutory Notes
following § 45-478.
625
Historical and Statutory Not...
Historical and Statutory Notes
Rev.Code 1928, §§ 3299, 3301. 3304, 3313.
Code 1939. §§ 75-120. 75-122, 75-125, 75­134.
A.R.S. fonne, §§ 45-237. 45-239. 45-242,
45-245.
For impairment of obligations and nonsevera~
bility provisions of Laws 1980, 4th S.S.• Ch. 1.
effective June 12, 1980, see Historical and Stat­utory
Noles preceding § 45-401.
I. Validity
Provisions of §§ 45-255, 45-257 and 45-259
pertaining to appointment of master. applica­tion
of rules of evidence. and effect of prior
Validity 1
Source:
Laws 1919, Ch. 164, §§ 24. 25 [23. 24]. 27
[28]. 30, 45, 46.
Laws 1921, Ch. 64. §§ 12 to 14.
§ 45-260. General adjudication fund
A. The state treasurer shall maintain a fund known as the general adjudica­tion
fund. All money appropriated to effect service of process and notices on
potential claimants pursuant to § 45-253. subsection A, paragraphs 1 and 2.
and all reimbursements to the director pursuant to § 45-253, subsection A.
paragraph 3 shall be deposited in such fund.
B. Monies in the general adjudication fund are exempt from the provisions
of § 35-190, relating to lapsing of appropriations.
Added by Laws 1979, Ch. 139, § 3, eff. April 24, 1979. Amended by Laws 1980, 4th
S.S.. Ch. I. § 72, eff. June 12, 1980; Laws 1981. Ch. 176. § 5, eff. April 17, 1981.
Notes of DecIsions
ceedings from the state land department to the "Sec. 85. Expiration date
superior court. Section 45-258, Arizona Revised Statutes, ex-
Laws 1979. Ch. 139, § 85 provides: pires from and after December 31. 1981."
WATER RIGHTS ADJUDICATIONS § 45-260
Ch.1
§ 45-259. Rules governing general adjudicattons
The general adjudication is governed in all respects by the Arizona rules of
evidence. the Arizona rules of civil procedure and any other procedural rules
generally applicable to civil proceedings. except that the specific provisions of
this article govern if they conflict with the Arizona rules of civil procedure or
any other procedural rules generally applicable to civil proceedings. Any
proceedings previously initiated under prior law and transferred to the superior
court for adjudication are subject to the provisions of this article only after the
transfer has been effected.
Added by Laws 1979. Ch. 139. § 39, eff. April 24, 1979.
WATERS
Title 45
the judgment or decree
1979 Reviser's Note:
Pursuant to authority of § 41-1304.02, in suJ>..
section B, paragraph 1. a comma was inserted
after "source" and a comma was deleted. after
"provided"
Notes of DecIsions
judgments do not infringe upon constitutional
powers of Supreme Court to make procedural
roles. since grant of such power does not pre--
vent legislature from enacting supplementarY
provisions. U.S. v. Superior Court In and For
Maricopa County (1985) 144 Ariz. 265. 697 P.2d
658.
Historical and Statutory Notes
For impairment of obligations and nonsevera~
bility provisions of Laws 1980. 4th 5.S., Ch. 1
effective June 12. 1980. see Historical and Stat·
UlOry Notes preceding § 45-40 1.
§ 45-257
I. Validity
Provisions of §§ 45-255. 45-257 and 45-259
pertaining to appointment of master, applica­tion
of rules of evidence, and effect of prior
such rights and dates of appropriation as found in
unless such rights have been abandoned.
2. Establish. in whatever fonn detennined to be most appropriate by the
court. one or more tabulations or lists of all water rights and their relative
priorities on the river system and source.
3. Refer the final judgment or decree to the director for administration and
enforcement under the continuing jurisdiction of the court.
4. Make appropriate orders to ensure that the entire record of the general
adjudication is preserved in an accessible and usable fonn.
.5.. Record a certified copy of the fmal judgment or decree in each county
withm the geographIcal scope of the general adjudication which shall constitute
constructive notice of the contents of the judgment or decree.
Added by Laws 1979. Ch. 139, § 39. eff. April 24. 1979. Amended by Laws 1980. 4th
S.S.. Ch. I. § 70, eff. June 12. 1980.
Waters and Water Courses <6=33.
WESTLAW Topic No. 405.
C.l.S. Waters § 194 et seq.
Source:
Laws 1919. Ch. 164, §§ 19 [18]. 24, 25 (23.
24J. 26. 27 [28], 30, 45, 46.
Laws 1921. Ch. 64. §§ 7. 12 to 14.
Rev.Code 1928. §§ 3296. 3299 to 3301. 3304.
3313.
Code 1939. §§ 75-117.75-120 to 75-122. 75­125.
75-134.
A.R.S. fo,me, §§ 45-234. 45-237 to 45-239,
45-242, 45-245.
Valldlly I
Historical and Statutory Notes
The repealed section. added by Laws 1979, § 75,..114; A.R.S. fonner § 45--231. and related
Ch. 139, § 39, derived from Laws 1919, ch. 164. to the transfer pending water rights claims pro­
§ 16; Rev.Code 1928. § 3293; Code 1939,
624
ATTACHMENT B
SPEAKER OF THE HOUSE
• MARK W. KILLIAN
1700 W. WASHINGTON
PHOENIX, ARIZONA 85007-2848
HOME ADDRESS:
4741 EAST SOUTHERN AVENUE
MESA, ARIZONA 85206
• MESA OFFICE: (602) 832-3679
CAPITOL: (602) 542-5729
TOLL FREE: 1 (800) 352-8404
DISTRICT 30
J\ri;;oua ~ouse of ~epreseuhdiues
J~oenix, J\rbmmt 85007
November 15, 1994
COMMITTEES:
LEGISLATIVE COUNCIL
JOINT LEGISLATIVE TAX
COMMITTEE
JOINT LEGISLATIVE AUDIT
COMMITTEE
The Honorable John Keegan
State Representative
State Capitol - House Wing
1700 W. Washington
Phoenix, Arizona 85007-2848.
Dear John:
It has come to my attention that we are closing in rapidly on the recommendations for the
Joint Select Committee on Arizona General Stream Adjudication.
I know that you are busy earning a living and trying to plan your life for the future and I
would respectfully request that I replace you as the Cochairman ofthis Committee and make some
adjustments so that we can have continuity in the leadership on this issue into the next session.
I am therefore going to ask Rusty Bowers to be the Cochairman of this Committee and
appoint Becky Jordan to fill your vacancy.
I appreciate all the hard work you have put into this effort and I appreciate the opportunity
we have had to serve together in the Legislature.
Very truly yours,
/--?7L/~~/--
MARK W. KILLIAN
Speaker ofthe House
MWK/tsn
SPEAKER OF THE HOUSE
MARK W. KILLIAN
1700W. WASHINGTON
PHOENIX, ARIZONA 85007-2848
HOME ADDRESS;
4741 EAST SOUTHERN AVENUE
MESA, ARIZONA 85206
MESA OFFICE: (602) 832-3679
CAPITOL (602) 542-5729
TOLL FREE: 1 (800) 352-8404
DISTRICT 30
J\rii!ona ~ous£ of ~£pr£s£ntatiu£s
Jqoenix, J\ri1!omt 8S007
November 15, 1994
COMMITTEES;
LEGISLATIVE COUNCIL
JOINT LEGISLATIVE TAX
COMMITTEE
JOINT LEGISLATIVE AUDIT
COMMITTEE
Representative Becky Jordan
State Representative
State Capitol - House Wing
1700 W. Washington
Phoenix, AZ 85007-2848
Dear Becky:
We are closing in rapidly on the recommendations for the Joint Select Committee on Arizona
General Stream Adjudication. It has become necessary to make some changes to the Committee
Membership.
It is my pleasure to inform you that you have been appointed as a Member ofthe Committee.
I have attached an updated copy ofthe Membership and Committee Charge for your information.
I appreciate your willingness to serve. Please feel free to call ifyou have any questions.
Very truly yours,
_..--7~~ / /
.------- ~ I/({>~~/_----
I
MARK W. KILLIAN
Speaker ofthe House
MWKInd
Attachment
JSCAGSA.194
SPEAKER OF THE HOUSE
MARK W. KlLUAN
1700 W. WASHINGTON
PHOENIX, ARIZONA 85007-2848
HOME ADDRESS:
4741 EAST SOUTHERN AVENUE
MESA, ARIZONA 85208
MESA OFFICE: (802) 832-3879
CAPITOL: (802) 542-5729
TOU FREE; 1 (800) 352-8404
DISTRICT 30
J\ri;:ona !louse of ~epresentatiues
J4oenix, J\rhomt 85007
November 15, 1994
COMMITTEES:
LEGISLATIVE COUNCIL
JOINT LEGISLATIVE TAX
COMMITTEE
JOINT LEGISLATIVE AUDIT
COMMITTEE
The Honorable Russell Bowers
State Representative
State Capitol - House Wing
1700 W. Washington
Phoenix, AZ 85007-2848
Dear Russell:
We are closing in rapidly on the recommendations for the Joint Select Committee on Arizona
General Stream Adjudication. It has become necessary to make some changes to the Committee
Membership.
It is my pleasure to inform you that you have been appointed as Cochairman of the
Committee. I have attached an updated copy of the Membership and Committee Charge for your
information.
I appreciate your willingness to serve. Please feel free to call if you have any questions.
Very truly yours,
·~/j----
MARK W. KILLIAN
Speaker ofthe House
MWK/nd
Attachment
JSCAGSA.I94
ATTACHMENT C
Table of Materials Presented to Committee Members
May 10, 1994 Meeting:
1. Report by the Arizona Department of Water Resources, May 10, 1994.
June 1, 1994 Meeting:
2. Memo dated June 1, 1994 to the Joint Select Committee on Arizona General
Stream Adjudications from Larry Linser and Steve Olson, ADWR, RE:
Organizational Analysis of Adjudication Problems.
3. Memo dated May 31, 1994 to Representative John Keegan from Steve Erb and
Steve Olson, ADWR, RE: Responses to Representative Keegan's Request of
May 10, 1994 (The Distribution of Adjudication Claims, the Accuracy of Water
Supply Measurements, and the Status of Indian Water Rights Settlements).
June 21, 1994 Meeting:
4. Memo to Representative John Keegan from Steve Erb and Steve Olson, ADWR,
RE: Summary of Distribution of Adjudication Water Right Claims.
5. Analysis of Western States' De Minimis Statutes - Prepared for the Joint Select
Committee on Arizona General Stream Adjudications by ADWR.
6. Memo Dated June 21, 1994 to the Members of the Joint Select Committee on
Arizona General Stream Adjudications from Senator Carol Springer, RE:
Proposals for the June 21, 1994 Meeting (1. De minimis uses, 2. Non-attorney
representatives, and 3. The Public Trust Doctrine).
July 19, 1994 Meeting:
7. Materials for the Select Committee on Arizona General Stream Adjudications ­Presentation
by Chief Justice Stanley G. Feldman, Judge Allen G. Minker, and
Special Master, John E. Thorson.
8. Memo Dated July 19, 1994 to the Joint Select Committee on Arizona General
Stream Adjudications from John Ronan Curry, Staff Attorney, Arizona Supreme
Court, RE: Summary of Cases Decided by this Court and Issues Still Pending
in Gila River Adjudication. Summary of Issues Included in Judge Goodfarb's
July 14, 1994 Certification.
September 7, 1994 Meeting:
9. Senator Springer Motions for June 19, 1994 Meeting of the Joint Select
Committee on Arizona General Stream Adjudications (De minimis uses).
10. Senator Springer Substitute Proposal 2 (Non-attorney Representation).
11. Senator Springer Substitute Proposal 3 (Public Trust Values).
12. Arzberger Proposal.to the Joint Select Committee on Arizona General Stream
Adjudications, September 7, 1994 (pre-1919 water claims; presumption of
validity).
13. Information Sheet - Legislation Streamlining Arizona's General Stream
Adjudications - Prepared by ADWR, September 7,1994.
14. Streamlining Arizona's General Stream Adjudications - Steve Olson, ADWR,
September 7, 1994.
15. City of Phoenix's Proposed Water Adjudication Legislative Reform and Comparison
to ADWR-SRP Proposal (Flow Charts and Outline of Duties and Responsibilities
in the Adjudications).
November 22, 1994 Meeting:
16. Summary of Concepts Adopted by the Joint Select Committee on Arizona
General Stream Adjudications, September 7, 1994 - Prepared by Senate Staff.
17. Summary of Speci~1 Master's Memorandum Decision on De Minimis Water Uses
in the San Pedro River Watershed, November 14, 1994.
18. Rule 28 Petition of the Arizona Supreme Court by the Arizona Judicial Council to
amend Rule 31 of the Rules of the Supreme Court to allow non-attorneys
(authoriZed officers or employees of corporations and unincorporated associations)
to appear in the general stream adjudications (Filed November 8, 1994).
19. Concepts to Amend the Adjudication Statutes and Surface Water Code,
November 22, 1994.
r NOTE: These materials are available in the Secretary of the Senate's office and the
House Chief Clerk's office as attachments to the minutes from the respective
meeting.)
r
ATTACHt1ENT D
ARIZONA STATE LEGISLATURE
JOINT SELECT COMMITTEE ON ARIZONA
GENERAL STREAM ADJUDICATIONS
Minutes of Meeting
Tuesday, May 10, 1994
House Hearing Room 3 - 1:00 p.m.
Members Present
Senator Day
Senator Springer
Senator Turner
Senator Arzberger
Senator Goudinoff
Senator Buster, Cochairman
Rita Pearson,
Member Absent
Representative Hanley
Representative Bowers
Representative Conner
Speaker Ki 11 ian
Representative Brown
Representative Keegan, Cochairman
Ex-Officio Member
Dan Shein
Susan McJunkin
Cochairman Keegan called the meeting to order at 1:12 p.m. and attendance was
noted. See attached sheets for other attendees. Representative Keegan read the
charge of the Committee as follows:
1. To estimate the public and private resources which have been expended in
adjudicati~ns processes since their inception and to estimate and
establish a time line of how long these proceedings are likely to continue
without a change in eXisting procedure.
2. Determine what changes can be made to the adjudication statutes and rules
which would simplify and help expedite the adjudications process while
mitigating the burdens imposed on all parties.
3. Determine what changes should be made to surface and groundwater codes in
Arizona, resulting in a reduction in the amount of litigation necessary to
adjudicate water rights.
Representative Keegan noted that the Department of Water Resources (DWR) was
asked to provide foundation information to assist the Committee in its task.
PRESENTATION BY DWR
Steve Olson. Legislative Liaison. DWR. provided a handout of the Department's
presentation (filed with original. minutes) and introduced the following DWR
resource staff: Michael Pearce and LC. Richmond of the Legal Division and
Donald· Gross and Chuck Cullom of the Adjudications Division.
May 10, 1994
Page 2
JOINT SELECT COMMITTEE ON ARIZONA
GENERAL STREAM ADJUDICATIONS
. Mr. Olson noted that surface water adjudications represent the third aspect of
the water issues faced by the Legislature, following the Central Arizona Project
and the groundwater management issues. He estimated that about 45 percent of the
water supplies available in the State consist of surface water. Mr. Olson
reiterated the Committee's role in developing a means to expedite the
adjudications process and reduce the amount and cost of litigation, noting that
an excess of $100 mill ion has been expended during the past 20 years of
adjudications, with DWR spending about $1 1/2 million a year on the process.
Larry Linser. Deputy Director. Office of Engineering and Adjudications. DWR.
explained that the adjudications are based on the need to determine unquantified
Federal Indian reservation water rights and to clarify State law water rights and
claims. He explained that Federal water rights are established by Federal case
law, including the Winters doctrine of 1908 by which the Supreme Court reserved
sufficient water for each reservation and determined the priority date of the
water ri ght to be based on the estab1i shment of the reservat ion, the 1963
decision in Arizona v. California which ruled that sufficient water be reserved
to irrigate all Indian lands that are practical for irrigation and the Cappaert
decision of 1976 which addressed Federal groundwater rights by restraining
groundwater pumping by users adjacent to a national monument with an endangered
species.
Representat i ve Keegan requested that di scussi on be provided at some poi nt
concerning water rights provisions in the Arizona Constitution.
Mr. Linser outlined the history of the adjudications proceedings and the State's
role in the process as found in the handout. He noted that the u.S. Supreme
Court in 1983 stayed the proceedings in the Federal courts when it determined the
Arizona court system was qualified to adjudicate Federal water rights pursuant
to the McCarran Amendment, which waives the sovereign immunity of the U.S. to be
sued in comprehensive water rights cases.
Mr. Linser addressed maps included in the handout· detailing Indian lands and
adjudications in Arizona and other western states and the status of Indian water
rights settlements in Arizona adjudications, as well as a chart comparing Indian
water rights claims and the actual surface water supplies available in the State.
Representative Keegan pointed out that the magnitude of the issue is even greater
than reflected by the chart since nonIndian water claims are not included.
Steve 'Erb. Adjudications Division Chief. DWR. displayed maps from the handout
indicating the extent of the adjudications in Arizona and the number of water
rights claims, which total 67,721 for the Gila River system and 11,207 for the
Little Colorado River system.
Representative Keegan asked for clarification of the status of those portions of
the Gila River system that extend into New Mexico and Mexico. Mr. Erb indicated
that a Federal decree encompasses the Gila River system. He added that Arizona
has coordinated with New Mexico in the preparation of reports but the situation
represents an outstanding issue as to how a State court proceeding will encompass
rights in the system. Mr. Erb also noted that international treaty issues are
JOINT SELECT COMMITTEE ON ARIZONA
GENERAL STREAM ADJUDICATIONS
May 10,1994
Page 3
involved in that portion of the system in Mexico, noting that the International
Boundary and Water Commission was established to monitor uses and coordinate
supplies in both countries and negotiate treaties when necessary.
Mr. Erb continued his part of the presentation by explaining the concept of the
adjudications process, noting that not a great deal of direction is provided in
the statutes.
Senator Arzberger questioned if those settlements that have been reached on the
Gila River will be recognized during the adjudications process. Mr. Erb noted
that two Indian settlements occurred in the 1990s, involving the Salt River Pima­Maricopa
Indian community and the Fort McDowell Indian community. He emphasized
that the congressional authority for those settlements required the adjudication
court to confirm the quantities set out in the settlement.
Senator Arzberger asked what entity currently owns the water rights on the San
Pedro River, which were at one time privately owned but later transferred to the
Bureau of Land Management (BLM) and eventually turned over to the San Pedro
Conservation Area. Mr. Eib responded that the water rights would be in the name
of the BLM and involve a non-Indian Federal right. He added that the priority
would originate from the date the area was established, which was about 1986,
although some claims for water rights were acquired from a previous landowner and
a Spanish land grant.
Senator Arzberger asked if individual water rights within the Conservation Area
ha~e to be settled in the adjudications process. Mr. Erb stated that most of the
individual land in the vicinity of the Conservation Area is supplied by wells,
adding that an important issue in the process involves the extent to which
groundwater is subject to the juri sdicti on of the adjudi cat ion. Senator
Arzberger asked what the implications would be in a situation such as that of the
Conservation Area, in which surface water rights were established for a certain
use and then transferred to another use. Mr. Erb acknowledged that the issue is
a concern which needs to be addressed.
Mr. Erb addressed a map in the handout whi ch refl ects the status of DWR
investigations. He pointed out that the process cannot proceed any faster than
hydrographic survey reports (HSRs) can be prepared by the Department.
Representative Bowers asked if the criteria for HSRs is impacted by Federal or
State legislation. Mr. Erb said the issue involves the determination of how to
handle the reports without violating the 1985 State Supreme Court ruling that DWR
should not be an adjudicator of water rights. He added that the HSRs for Indian
claims will be much different in scope and content than the non-Indian claims
since the basis of Indian water rights in law is different than that of
non- Indi an water ri ghts. Representative Bowers asked if that is due to the
Arizona v. California ruling. Mr. Erb answered affirmatively, adding that the
ruling was based on the earlier Winters doctrine. Representative Bowers asked
if the Cappaert decision has an impact on the criteria used 'in HSRs, to which
Mr. Erb said that decision will eventually have an affect as the process
continues. Representative Bowers asked if the recent declarations of pristine
May 10, 1994
Page 4
JOINT SELECT COMMITTEE ON ARIZONA
GENERAL STREAM ADJUDICATIONS
or critical habitats wou~d have an impact on adjudications. Mr. Erb indicated
the issue is a topic of debate.
Representative Keegan asked if ther~ has been an attempt to estimate what the
technology for providing irrigation was at the time each reservation was
established. Mr. Erb said the issue of whether the amount of irrigable land on
reservations should be determined by the technology available at the time of
establishment or by present technology has not been resolved in Arizona. He
emphasized that the Arizona v. Cal ifornia decision is effective for the situation
along the Colorado River because of the quantity of water available, but poses
a problem in central Arizona since the amount of land which could probably
support agriculture exceeds the available water supplies.
Representative Bowers asked if the Legislature has the authority to make a
determination on the quantifying of Indian water rights. Mr. Erb said he does
not believe the Legislature would have such authority since the issue involves
a matter of Federal law. Representative Bowers said he was under the impression
that the State .was given a primary position under a Federal decision to
adjudicate some of the issues in question. He asked how much latitude the State
has and what the Committee or Legislature should focus on in clarifying some of
the issues. Mr. Erb emphasized that the McCarran Amendment gave the states the
authority to join the Federal government in determining their rights by following
the Winters doctrine and the Arizona v. California decision. He pointed out that
determination of those rights through litigation provides the threat of massive
expenditures, which is the driving force for encouraging settlements. Mr. Erb
suggested the Legi s1ature can ass i st the process by supporting settl ement
efforts.
Senator Buster said he thought the purpose of the Committee was to set parameters
to help shape the debate of the process. Ms. Pearson contended the real focus
of the Committee will be efforts involving State-based claims to surface water
rather than Indian tribal claims.
Representative Bowers asked who would determine whether a settlement is
comprehensive. Mr. Erb said the trial court has been deciding the comprehensive
issue when the water rights are litigated.
Mr. Erb continued his presentation by addressing a chart in the handout depicting
the status of the investigation of water rights claims in the Gila River system.
He noted that DWR has completed the investigation and reporting for 21 percent
of the claims and projects the completion of its investigations to be in 14
years. Mr. Erb also commented on a time line chart outlining the major events
in Arizona adjudications.
Michael Pearce, Legal Division, DWR, responded to Representative Keegan's earlier
question pertaining to water rights provisions in the Arizona Constitution,
adding that he assumed Representative Keegan was referring to the provision which
abolishes the doctrine of riparian rights in the State. He explained that the
word "riparian" means land adjacent to a stream. Mr. Pearce observed that in the
eastern states a landowner with land adjacent to a stream was entitled to insist
JOINT SELECT COMMITTEE ON ARIZONA
GENERAL STREAM ADJUDICATIONS
May la, 1994
Page 5
to his neighbors that the stream flow by his property uninterrupted by upstream
diversions. Mr. Pearce explained that the doctrine was abolished throughout the
West in favor of the doctrine of prior appropriation by which a water right is
necessary in order to insist that water from a stream flow by a landowner's
property. He further noted that for the last century those water rights have
been granted in Arizona under State law, which include some of the rights
currently being adjudicated.
Mr. Pearce explained that the Federal rights involved in the issue under
discussion concern water flowing down a stream as well but are not based on the
riparian doctrine. He added that consequently the Arizona Constitution will not
affect such rights. Mr. Pearce also pointed out that the Arizona Constitution
may govern State issues but does not govern Federal rights under the supremacy
clause of the U.S. Constitution. He further noted that Arizona has the authority
under the McCarran Amendment to try issues involving Indian water rights in State
courts. However, those issues must be tri ed under Federal 1aw. Mr. Pearce
cautioned that failure to do so would probably cause the Federal courts to
intervene and reverse State decisions.
Mr. Linser concluded the DWR presentation by ref~rring to a chart in the handout
reflecting the major problems with the adjudication process and potential
legislative solutions.
Bill Swan. attorney. representing U.S. Department of the Interior. explained to
the Committee that the Department 1it igates through the U. S. Department of
Justice. He made further comments on the McCarran Amendment, which allows the
Federal government to be included in State court comprehensive water rights
adjudications. Mr. Swan added that the Department of Justice is quick to
litigate issues concerning the McCarran Amendment, and he cautioned that
legislative actions affecting the nature of the proceedings or the due process
rights of the Federal government could affect the waiver of immunity or take away
appropriate points of challenge available in a property rights dispute. Mr. Swan
emphasized that the solution to the problems at hand rests with settlements.
However, he pointed out that the Federal government may not be able to afford the
amounts of money that have been expended in the past and is trying to develop
creative methods to generate funds.
Representative Keegan asked how the creation of reservations as recent as the
late 1980s affects Federal water rights. Mr. Swan explained that some courts in
the West have held that Indian tribes which have been in a location for hundreds
of years have a time immemorial or first priority date, while others use the date
of the creation of the particular parcel as a reservation.
Representative Bowers asked if the Justice Department's response to McCarran
questions is generally instigated more by procedural or substantive content.
Mr. Swan indicated that both instances probably apply. He explained that the
Justice Department has never quite warmed to the McCarran Amendment, feeling that
Federal government matters should be litigated in Federal court.
May 10, 1994
Page 6
JOINT SELECT COMMITTEE ON ARIZONA
GENERAL STREAM ADJUDICATIONS
Representative Bowers asked if a legislative action concerning the connection
between groundwater and surface water, which was not received favorably by the
Department of Interior, could be litigated by the Department of Justice on the
basis of the McCarran Amendment. Mr. Swan pointed out that such an issue may not
necessarily affect the McCarran question since the Department of the Interior
believes that the u.S. Supreme Court has enuncjated the protection for Federal
reserve water rights from pumping.
Speaker Killian said he appreciated the comment by Mr. Swan concerning property
rights issues and his willingness to address the Committee. Mr. Swan offered to
return at a later time to address the issues more in depth.
In response to a question from Representative Conner regardi ng the amounts
involved with settlements, Mr. Swan said he cannot speculate on future settlement
amounts but noted that the Salt River Pima-Maricopa settlement cost the Federal
government approximately $55 million, with the Legislature appropriating
$3-$4 million. Mr. Swan further noted that the Federal cost for the Fort
McDowell settlement was $30 million and the State cost was $2-$3 million, and the
San Carlos settl ement cost the Federal government. $30-$40 mi 11 i on and the
Legislature appropriated $2-$4 million. Mr. Swan contended that the Gila River
settlement will probably cost several hundred million dollars while the Tohono
0' Odham settlement will be in the vicinity of the other amounts expended.
David Brown. attorney. representing Little Colorado River Claimants. commented
on the substantial number of objections which have been filed on the claims,
particularly by the u.S. Government and the tribes, Salt River Project and the
State. He suggested that the Committee focus its efforts on State law issues and
procedures in an attempt to shorten the adjudications process. He also said he
hopes the Committee wi 11 address the small users, eli mi nate the State 1aw
objections based on technical defects, and allow people who have fallen through
the cracks to file claims at a later date.
Wayne Klump. representing himself. expressed concerns about his water rights and
emphasized that the u.S. Constitution gives more power to the State than the
testimony today has indicated. He commented on the Winters doctrine which he
said does not address the riparian doctrine. He noted that Article 17, Section
1, of the Arizona Constitution states that the riparian doctrine shall have no
force in the State, and that Section 2 indicates all existing water rights are
recognized. Mr. Klump further stated that the Federal act of July 26, 1866,
provides that these rights are recognized if the water is put to beneficial use,
and is further codified in 43 U.S. Code Section 661. He also noted that the
enabling act and Article 10, Section 10, of the Arizona Constitution indicates
that lessees are protected in their rights to their improvements, including water
rights. He emphasized that such water rights cannot be taken away without due
process of law and just compensation.
Mr. Klump commented on the u.S. v. New Mexico decision in which the U.S. Forest
Service attempted to claim Federal reserve rights and the U.S. Supreme Court
ruled that the Federal government could only claim that amount for which the
reservation was created. He suggested the Legislature consider the addition of
JOINT SELECT COMMITTEE ON ARIZONA
GENERAL STREAM ADJUDICATIONS
May 10, 1994
Page 7
language to Arizona Revised Statute 45-274(0) to reflect that the person who puts
the water to beneficial use actually owns the water.
Randy Gressl ey, representi ng himself, expressed his concern that water ri ghts can
be taken from the land, and he urged that common sense and simplicity be used in
consideration of the issue.
Jeff Larson, President, Lakeside Irrigation Company, informed the Committee that
he is involved in an environmental effort to protect a stream and has several
private claims. He commended the Committee for being willing to address such a
complex problem and commented on the importance of the issue.
Russell Smoldon, State Government Relations Manager, SRP, emphasized that SRP is
a large entity but is als~ representative of hundreds of small users. He stated
that the resolution of water rights is imperative and the State has an obligation
to reduce the costs associated with the adjudications process. He noted that SRP
submitted a proposal for the Committee to utilize during its efforts (summary
filed with original minutes).
Mr. Smoldon acknowledged that SRP has objected to some of the adjudications
process. He explained that because of the way the legal system operates SRP is
forced to object in areas in which a precedent may be set in order to protect the
rights of shareholders.
Karen Peters, attorney, City of Phoenix, stated that the City of Phoenix would
have some ideas it would like to present to the Committee at a later hearing.
Mike Brophy, attorney, Roosevelt Water Conservation District, echoed the comments
made by Mr. Brown and said he looks forward to working with the Committee.
Doug Nelson, attorney, representing various claimants, urged the Committee to
cons ider the issue of the sma11 water users and to make the process more
equitable. He also contended that a settlement merely represents a partial
agreement relating to a certain entitlement of water but that the issue of which
water user will give up the supply for the tribes has yet to be adjudicated.
Mr. Nelson suggested the Committee seek a legal opinion concerning the McCarran
and due process issues to determine any likely risks in those areas.
Representative Keegan asked that OWR prepare for the next meeting a breakdown of
the claims by size so as to determine what constitutes a small water claim. He
also requested an estimate of the degree of accuracy on the hydrologic
computation for the available water within the basins.
Representative Brown suggested that staff and OWR review the various proposals
which have been submitted in order to reach some common understanding.
Senator Springer thanked those who submitted ideas and concepts and commented on
the importance of such material during the Committee's deliberations.
May 10, 1994
Page 8
JOINT SELECT COMMITTEE ON ARIZONA
GENERAL STREAM ADJUDICATIONS
Senator Turner suggested that future meetings be held on a fairly regul ar
schedule to facilitate participation.
Senator Arzberger asked for clarification from DWR about the settlements that
have been reached.
Speaker Killian requested staff to review the issues raised by Mr. Klump
concerning the Arizona Constitution and certain Federal acts.
The meeting adjourned at 3:40 p.m.
Respectfully submitted,
~~~c,.~
J ce C. Stell
Committee Secretary
(Attachments and tapes on file in the Office of the Secretary of the Senate.)
ARIZONA HOUSE OF REPRESENTATIVES
GUESTS ATTENDING MEETING
HEARING ROOM
-~-
TIME /r- r t I <
BILL NO.
ATTACHMENT_
/;' " 1
s.L.. D.
C'1t <.-+ (/. LvlCJ,..
tl U. l{ LI
(L II l'- L (
(\. l~ II ( ( .
s +, t-<. \If At -A-f+, 6-('~
Sol SW~.
JaA/\
/1/
ARIZONA HOUSE OF REPRESENTATIVES
CUESTS ATTENDING MEETING HEAR INC ROOM ~
/) TIME ~fY\
MEETINGSu 7S \.:0 M n ,7/:e ~ oJ-) A-J)V. DATE :=~ ~2Y
NAME AND TITLE (Please print) REPRESENTING BILL I\,jO.
ATTACHMENT
GUESTS ATTENDINC MEETINC
ARIZONA HOUSE OF REPRESENTATIVES
HEAR ING ROO,\1---
TIME------ MEET INC DATE _
NAME AND TITLE (Ple.s. p,.int) REPRESENTINC BILL ~O.
~1/L{J [/' ,0 &,l.,/\-
j
/
ATTACHMENT
ARIZONA STATE LEGISLATURE
JOINT SELECT COMMITTEE ON ARIZONA
GENERAL STREAM ADJUDICATIONS
Minutes of Meeting
Wednesday, June 1, 1994
House Hearing Room 3 - 2:00 p.m.
Members Present
Senator Springer
Senator Arzberger
Senator Goudinoff
Senator Buster, Cochairman
Rita Pearson,
Member Absent
Representative Hanley
Senator Day
Senator Turner
Speaker Ki 11 ian
Representative Bowers
Representative Conner
Representative Brown
Representative Keegan, Cochairman
Ex-Officio Member
Dan Shein
Michael Mandell
Susan McJunkin
Victoria Clark
Cochairman Keegan called the meeting to order at 2:10 p.m. and attendance was
noted. See attac~ed sheets for other attendees.
Steve Olson. Legislative Liaison. Department of Water Resources (DWRl. provided
an organizational analysis of the proposals submitted by various parties
interested in adjudication reform (filed with original minutes).
Senator Springer asked for clarification of the concept of an arbitrator in the
settlement of disputes, questioning how a solution can be achieved between two
parties that may be binding on the rights of others. Mr. Olson indicated that
the concept involves a discreet unit of individuals with either shared conflicts
or interests, working together to resolve the first step in the process.
Representative Keegan referred to the proposal which provides a State-funded
ombudsman to represent individuals in the adjudication process, adding that he
thought the original intent was for the Special Master to act as an ombudsman.
Senator Arzberger suggested the Legislature may want to clarify the definition
of the Special Master. Representative Keegan indicated that creating a second
office to fill the role of ombudsman might not be productive.
Senator Springer asked if any individuals have expressed objection to an
exemption for de minimis users.
Joe Sparks. attorney. representing San Carlos Apache Indian Tribe. maintained
that the tribe has objected to the issue and has litigated the matter in its
current form.
June 1, 1994
Page 2
JOINT SELECT COMMITTEE ON
ARIZONA GENERAL STREAM ADJUDICATIONS
Senator Buster asked how much more water is being claimed than actually exists.
Mr. Olson estimated the amount to be about twice the undep1eted water supply,
which includes only surface water and does not include Central Arizona Project
(CAP) water.
Senator Spri nger asked if any part i es in the process have objected to a
particular quantification of an appropriated water right.
Steve Erb, Adjudications Division Chief, DWR, indicated that a great deal of
dispute has occurred.
Senator Goudinoff emphasized the need to concentrate on Indian water rights
settlements first and asked if a proposal to sell CAP water to Nevada and use the
funds for such sett1 ements is in the purvi ew of the Committee. Ms. Pearson
pointed out that the proposal deals with Colorado River water and is separate
from the adjudications under discussion, which involve the Little Co10r1do River
and Gil a Ri ver watersheds. Senator Goudi noff observed that testimony at the 1ast
meeting emphasized the importance of supporting Indian settlements. He contended
that utilizing excess CAP water could become a mechanism for that support.
Senator Springer said that everyone in the process probably recognizes the
priority of Indian rights but she commented on the need to move ahead in
resolving the other issues.
Senator ArzbergL asked if consideration has been given to those water rights
which were recorded before the establishment of treaties with the Indians, to
which Mr. Olson acknowledged that the consideration of those records has been a
part of the process. Senator Arzberger contended that the water rights
established before those treaties should have precedence.
Senator Springer asked if all reservations automatically carry the Federal
reserve right.
Larry Linser, Deputy Director, Office of Engineering and Adjudications, DWR,
explained that the Winters Doctrine indicates that water rights are reserved for
reservations from the time of the establishment of the reservation. However, he
noted that many of the tribes claim rights from time immemorial. He added that
the issue of priority dates attached to particular reservations is currently
before the court. Senator Springer asked if the maps of Indian lands which were
provided to the Committee involve boundaries of reservations rather than Indian­owned
1ands. Mr. Li nser responded that the maps are not deta i1ed enough to
differentiate between reservation and Indian-owned lands, adding that reservation
boundaries themselves are an issue in the litigations.
Senator Springer contended the de minimis issue is a critical one that needs to
be addressed as soon as possible. She said she would be interested in knowing
if there are any other ideas as to what should be included in the definition of
de minimis.
JOINT SELECT COMMITTEE ON
ARIZONA GENERAL STREAM ADJUDICATIONS
PUBLIC TESTIMONY
June 1, 1994
Page 3
Jack Smallhouse. Vice President. Bayless and Berkalew Company. noted that his
ranch has water rights dating back to 1866 and is one of the targeted cases on
the San Pedro River. He emphasized the costliness of the adjudication process,
and he contended it is the Federal government's responsibility to settle the
issues involving water rights that it granted to both Indian and non-Indian
users. Mr. Smallhouse provided a handout reflecting the beneficial influence of
stockponds on downstream water yield (filed with original minutes).
In response to a question from Senator Arzberger, Mr. Smallhouse indicated the
average stockpond contains about 1/2 of an acre foot of water a year. Senator
Arzberger said the Committee would probably include the stockpond issue under de
minimis uses. In further discussion of the stockpond issue with Senator Buster,
Mr. Smallhouse explained that stockponds generally include runoff from rainfall
and only a small fraction of that water would have reached the river channel.
H.T. Hendrickson. representing San Pedro River ranchers. indicated that all of
the families involved in the adjudication on the San Pedro River, except for his,
have been in the area since before the turn of the century. He noted that only
about 209 acre feet of water have been settled to date at a cost in legal fees
of $66,000. He maintained that the ranches involved have priority to the water
they are using. However, he expressed concern that the secondary users will be
able to outspend the ranchers, causing them to lose the water by default.
Mr. Hendrickson emphasized the need for a de minimis standard, noting that 15
acre feet de minimis would cover virtually every stockpond in the San Pedro River
watershed and that many of the stockponds do not contain water all of the time.
In addition, Mr. Hendrickson urged that the State be more assertive over its
control of the water on Federal lands.
In response to Senator Buster, Mr. Hendrickson explained that water in stockponds
is considered to be surface water since it is derived from rainfall and runoff.
Senator Springer questioned whether there should be a quantified amount of water
for stockponds since they do not always contain water. Mr. Hendrickson contended
the only way to quantify stockponds is on the size of the tank rather than the
amount of water.
Representative Brown agreed that the stockpond issue is one area in which the
process could be simplified since stockponds act as erosion control and involve
such small amounts of water.
Jim Pyeatt. representing Pyeatt Ranch. indicated that his ranch is one of the
test cases on the San Pedro River, noting that his family has been ranching in
the same place since 1899 and has found documentation of water rights for the
area back to 1864. He emphasized the importance of the de minimis issue for the
ranchers involved, expressing concern that the participants are required to spend
June 1, 1994
Page 4
JOINT SELECT COMMITTEE ON
ARIZONA GENERAL STREAM ADJUDICATIONS
a great deal of time in Phoenix. Mr. Pyeatt also noted that in addition to the
expense of the ranchers' own attorney, their tax dollars go to fund government
lawyers in the adjudication process.
Eugene Husted. representing St. David Irrigation District. said he has eight
acres of property on the San Pedro Ri ver and expressed concern about the
possibility of losing his water rights. He observed that water rights exist in
St. David as of the Homestead Act from 1862 and patented claims signed by
President Chester Arthur in 1881. He contended that those agreements were with
the U.S. government, questioning at what point those claims can be considered
null and void.
Andy Mayberry. representing St. David Irrigation District. informed the Committee
that his family settled in the area in the 1880s and has made beneficial use of
the water. He expressed concern about the cost of the adjudication process for
individuals who are not able to compete with the resources available to the
Federal government and others.
Senator Arzberger asked if the Natural Conservation Area on the San Pedro River
affects the St. David Irrigation District. Mr. Mayberry responded that the
Conservation Area has limited the use of the river, and he expressed concern that
the current management process on the San Pedro River could lead to the
destruction of the area.
Eldon Barney. President. Pomerene Water Users Association. and a fourth
generation Arizonan, also expressed his concerns about the possible loss of water
rights and the costs involved in the adjudication process.
Senator Arzberger observed that the San Pedro River has diminished in flow over
the years and questioned if Mexico is using more of the water. Mr. Linser said
that DWR does not have much information on the amount of water used in Mexico,
adding that Mexico has the right to develop the river according to their laws.
Paul Brick. representing Pomerene Water Users Association. indicated he is also
a supervisor for the San Pedro Natural Resource Conservation District (NRCD).
He differentiated between the NRCD and the Bureau of Land Management Conservation
Area mentioned by Senator Arzberger, contending that the management practices of
the Conservation Area may have the effect of destroying the resource it is trying
to save. Mr. Brick informed the Committee that a group of ranchers and water
users in Mexico are working informally on issues pertaining to the management of
the river, and he commented on the value of stockponds.
Mr. Brick expressed concern about the cost of the adjudication process for
individuals trying to compete with large corporations, which includes the need
to travel to Phoenix for hearings and to obtain documents. He emphasized that
the small users should be exempt from the proceedings, and he expressed concern
about objections to claims that are simply technical in nature.
Representative Conner noted that for irrigation and water rights the NRCDs, the
Soil Conservation Service and the University of Arizona have the ability to
JOINT SELECT COMMITTEE ON
ARIZONA GENERAL STREAM ADJUDICATIONS
June 1t 1994
Page 5
determine the kind of soil available, ~he kind of crop that can be grown and how
much acre feet of water is necessary 1n an area. He questioned why the courts
do not consider such a course of action in order to determine the amount of acre
feet of water an individual should receive.
Steve Hernandez, New Mexico attorney, representing ranchers in San Pedro River
adjudication, emphasized the unfairness of subjecting small users like his
clients to the rigors of the litigation system in place. Mr. Hernandez informed
the Committee that he is currently working on two adjudications in New Mexico,
adding that New Mexico has a de minimis concept for stockponds, stock watering
and small domestic use. He explained that domestic users of under three acre
feet of water and stockponds and stock watering involving under nine acre feet
of water are not included in the adjudications, adding that their absence has not
taken away from a complete and fair adjudication of everyone's rights.
Senator Goudinoff asked if the New Mexico experience involved Indian claims, to
which Mr. Hernandez answered affirmatively. Senator Goudinoff said the concern
in Arizona is that the tribes will challenge the de minimis concept, running the
risk of affecting the McCarran Amendment. Mr. Hernandez observed that in some
cases in New Mexico the tribes considered the issue of no consequence and in
other cases the issue was litigated but the claims were ruled de minimis, with
no problems in meeting the McCarran Amendment requirements. Senator Goudinoff
asked if the quantity of water involved in New Mexico in terms of the flow in the
stream is radically different than the situation on the San Pedro River.
Mr. Hernandez replied that the water uses in ranching operations appear to be
very uniform in New Mexico and Arizona.
Senator Arzberger asked if an Arizona legislative definition of de minimis
similar to that in New Mexico would provide a good chance of prevailing in
litigations involving the San Pedro River, to which Mr. Hernandez answered
affirmatively.
Senator Springer asked if the exemption in New Mexico for domestic use involves
a particular parcel size. Mr. Hernandez indicated it does not, adding that the
exemption pertains to a maximum of three acre feet per household with some
limitations on how the water can be used. Senator Springer asked for
clarification of the nine acre feet exemption for stock watering. Mr. Hernandez
indicated that the figure represents the capacity of the structure holding the
water.
Representative Bowers observed that Secretary Babbitt has repeatedly said that
he will not compromise on the re-federalization of water infrastructure in the
West, including windmills, ditches, stockponds, etc., and he questioned if the
de minimis definition in New Mexico prevailed against that mentality.
Mr. Hernandez responded that to date New Mexico has not been faced with Federal
government assertion of ownership of stockponds anq stock watering on Federal
land, adding that he was surprised to see the issue in Arizona.
Representative Keegan turned the chair over to his cochairman, Senator Buster.
June 1, 1994
Page 6
JOINT SELECT COMMITTEE ON
ARIZONA GENERAL STREAM ADJUDICATIONS
Steve Brophy, President, Aztec Land and Cattle Company, noted that his company,
which came to Arizona in 1886, owns 19,000 acres within the Silver Creek
hydrographic survey area used strictly for stock watering. He acknowledged that
the adoption of a de minimis standard would help the process, but he encouraged
the Committee to recommend that the Legislature clarify water rights under State
law rather than confining itself to the de minimis question. He observed that
the reason there is a difference in the Federal government's approach to water
rights questions in Arizona and those in New Mexico is because of a policy
adopted by DWR that Federal government and State 1and owners have ri ghts
precedent to water appropriators on State and Federal leased land.
Senator Arzberger asked Mr. Brophy if he believes the Legislature has the right
to cl ari fy that water rights fil ed in the 1800s take precedence over 1ater
claims. Mr. Brophy contended the Legislature does not have the power to indicate
priority but can clarify water rights, adding that any court will defer to what
the Legislature indicates is a water right under State law.
James Walsh, representing The Nature Conservancy, indicated the organization has
been involved in the Gila adjudication process in defense of its private surface
water rights. He emphasized the importance of establishing a de minimis standard
and in making provisions to grandfather changes in diversion and beneficial use
so as to avoid litigation on the validity of such changes. He also commented on
the need to extend the presumption of validity to existing beneficial uses
documented by DWR in the hydrographic survey reports for the five-year period
preceding the reports, which would help resolve questions of abandonment and
forfeiture of uses that did or did not occur prior to that five-year period.
Mr. Walsh listed options available to the Legislature, such as unifying
groundwater and surface water under one surface water code, ma i nta in i ng the
di st i nct i on between perco1at i ng groundwater and appropri ab1e groundwater or
letting the court wrestle with the issue while trying to find a way to provide
for some kind of integrated management separate from the surface water code.
Representative Bowers asked Mr. Walsh if he had any information on the current
demands for water on the San Pedro River in Mexico. Mr. Walsh said he would
research the issue and provide any information he can find.
Senator Buster noted that the Committee will meet again on the week of June 13
to hear testimony from some of the judiciary involved in the process and consider
the formation of breakout groups to discuss various issues.
Representative Bowers advised the Committee that he has a copy of a document
reviewing some of the water rights legislation for Federal lands.
Senator Goudinoff indicated it would be interesting to know the effect of the
elimination of the legal distinction between groundwater and surface water in
other states.
JOINT SELECT COMMITTEE ON
ARIZONA GENERAL STREAM ADJUDICATIONS
The meeting adjourned at 3:40 p.m.
Respectfully submitted,
J ice C. Stell
ommittee Secretary
June 1, 1994
Page 7
(Attachments and tapes on file in the Office of the Secretary of the Senate.)
ARIZONA HOUSE OF REPRESENTATIVES
GUESTS ATTENDING MEETING HEARING ROOi\1~
, ' .,. T fME ;J'Cc \\ (Y ')
... EETINC \.o.;nd led,.~ 0;1\.<'<' Iert CQiIlnll:ll!, (l,(J U"f' Xl . , CATE (\. \ - CK
i C/ ~-.t.(U~ ~t'\.X0-.Jy\ Cld ~~u.,'v,\:......;
NAME AND TITLE (PI••,e ,.int) REPRESENTINC BILL ~o.
(
GUESTS ATTENDING MEETING
ARIZONA HOUSE OF REPRESENTATIVES
HEARING ROOM
--='--
TIME .CJ ,,,,)! I !
'r1EETINC--------------------DATE i \ ""',./J'. -....;\....._--..:....._-
NAME AND TITLE (Ple.se rint) REPRESENTINC BILL "lO.
ATTACHMENT
ARIZONA STATE LEGISLATURE
JOINT SELECT COMMITTEE ON ARIZONA
GENERAL STREAM ADJUDICATIONS
Minutes of Meeting
Tuesday, June 21, 1994
Senate Hearing Room 1 - 2:00 p.m.
Members Present
Senator Day
Senator Springer
Senator Turner
Senator Arzberger
Senator Goudinoff
Senator Buster, Cochairman
Members Absent
Representative Hanley
Rita Pearson, ex-officio
Representative Bowers
Representative Conner
Speaker Killian
Representative Brown
Representative Keegan, Cochairman
Dan Shein
Susan McJunkin
Victoria Clark
Cochairman Buster called the meeting to order at 2:10 p.m. and attendance was
noted. See attached sheets for other attendees.
PRESENTATION ON THE FEDERAL PERSPECTIVE
William Swan, Office of the Solicitor, U.S. Department of the Interior. informed
the Committee that as an attorney he represents the Secretary of the Interior and
also gives advice to the agencies of the Department, including the Bureau of
Indian Affairs (BIA), Bureau of Reclamation, Bureau of Land Management (BLM) and
National Parks Service. He emphasized that his testimony was not on behalf of
the Indian communities or the Department of Justice, which is the lead trial
lawyer for the U.S. in the adjudication proceedings.
Mr. Swan explained that the Federal agencies which have filed claims in the Gila
River and Little Colorado River adjudications include the BIA, BLM, National
Forest Servic~, National Parks Service, U.S. Fish and Wildlife Service and
various military installations. He noted that the largest quantity of water
claimed is through the BIA on behalf of Indian tribes. He added that these
claims cause so much difficulty in the process since they often include hundreds
of thousands of acre feet of water and go back quite some time in terms of
priority. Mr. Swan observed that other claims are more medium in size but also
create some tensions, such as a claim by the National Parks Service for Walnut
Canyon National Monument near Flagstaff on a stream from which Flagstaff obtains
some of its water.
Representative Bowers asked what type of water usage is applied to the Monument
to determine the Federal government's possession of the water right. Mr. Swan
June 21, 1994
Page 2
JOINT SELECT COMMITTEE ON ARIZONA
GENERAL STREAM ADJUDICATIONS
sa id that cons iderat ion is gi ven to the purpose for wh i ch the Monument was
created, with an attempt to quantify its administrative needs and the possibility
of some instream flow so that the Monument looks like it did when first set aside
by Congress. Representative Bowers observed that instream flow is not a
definition in Arizona law and questioned if Federal law would apply. Mr. Swan
indicated that the Federal government would not look to State law in that
situation since the claim is a Federal reserve water right for a reservation of
land, and the Federal government would argue to the court that instream flow is
a permissible use.
Mr. Swan continued his presentation by stating that many of the water claims
filed by the Federal government are small in nature, noting that the great number
of claims is by the Forest Service and BLM due to springs, stock ponds and other
small water sources on publ ic lands. Mr. Swan offered two examples of such
claims for the Committee to review, filed on behalf of the Salt River Pima­Maricopa
Indian tribe and by the National Parks Service in the Little Colorado
River proceeding for Walnut Canyon National Monument, Grand Canyon and other
installations (copies provided to staff). Mr. Swan noted that the Salt River
Indian claims reached a settlement but pointed out the kind of tension such
claims bring to the system since a prevailing argument on the side of the
government in any litigation would have made a significant impact on the Salt
River system.
Mr. Swan advised that some large claims can be misunderstood, such as the claim
for 1,500,000 acre feet the Federal government filed on behalf of the Gila River
Indian community. He pointed out that the tribe would probably not receive that
amount of water due to various issues in the litigation, although the government
considers its duty is to file any claim it feels has merit.
Senator Arzberger emphasized the importance of knowing what amounts of water the
tribes would be willing to settle for so that the Legislature can make
intelligent decisions concerning the claims. Mr. Swan noted that the Indian
claims would be resolved in court through litigation or through settlement rather
than in the legislative body. He added that the settlement process with the
interested parties, including attorneys representing the State, involves the
determination of a water budget for the tribe and how it can be filled. Mr. Swan
advised that the effort to settle the Gila River Indian community claim has been
temporarily stalled because of Central Arizona Project (CAP) negotiations.
Senator Arzberger stated that some Gila River water rights predate the
establishment of some reservations, which should be taken into consideration
during the process. He also emphasized the need to utilize CAP water in settling
the Indian claims in order to keep those allotments from going to other states.
In addition, Senator Arzberger urged Mr. Swan to communicate to Washington, D.C.,
the importance of speeding up the process to determine the bottom line amount of
Indian claims.
In response to a question from Representative Bowers regarding a policy to settle
claims rather than adjudicate, Mr. Swan indicated that it is a policy of this
Department of Interior administration, as well as the previous one, to seek
JOINT SELECT COMMITTEE ON ARIZONA
GENERAL STREAM ADJUDICATIONS
June 21, 1994
Page 3
resolution by settlement where it can be done with the tribes' consent and
appropriate local sharing of the burden.
Representative Bowers commented on the hardships the process has caused for small
water users, and he questioned why the Federal government did not proceed with
its claims first to establish precedence in court. Mr. Swan explained that when
the idea of adjudicating Indian water rights came about in the 1970s, the Federal
government and the tribes favored the litigation of those rights first and early
in Federal court. He noted, however, that a conflict ensued because people in
Arizona did not want their local rights decided in Federal court, and the U.S.
Supreme Court determined the Arizona court system was sufficient to adjudicate
Federal water rights pursuant to the McCarran Amendment.
Mr. Swan contended some individuals involved in the process may now prefer that
the Indian right~ had been litigated in Federal court years ago. He added that
it is a decision for the court as to whether Indian water rights litigation is
moved ahead of non-Indian rights. Representative Bowers asked if the Federal
government is willing to petition the court to move itself to the head of the
line. Mr. Swan indicated that he cannot commit the government to that, although
he said he does not believe there would be opposition.
In response to a question from Senator Buster concerning the consideration of
tribal concerns first in State courts, Mr. Swan explained that the claims could
have been placed first but the judges decided against that. Senator Buster asked
staff to research the history on the issue.
Mr. Swan continued his presentation by explaining how Federal agencies are
represented in their claims, noting that a Justice Denartment trial lawyer is
assigned to BIA claims and a second lawyer is assigned to all other Federal
agencies since there could be some conflicts between those two kinds of claims.
Senator Goudinoff asked if the Federal government's preference for settlement
over adjudication is a generalized policy or the result of comparisons reflecting
the benefits of settlement over adjudication. Mr. Swan responded that the policy
reflects a position that settlement in an amicable process is favorable to the
citizenry than litigation, and he suggested that any actual attempts at
comparison would favor settlements.
Representative Bowers suggested that State courts have proven to be a good venue
for the Department of Interi or. Mr. Swan agreed that the government has
generally fared well in the State court process but does not assume that it will
win all of its arguments on Indian water rights.
Senator Springer asked for clarification of the problems with the CAP that are
hindering solution of settlements. Mr. Swan explained that one significant
problem is that the agriculture part of the project is financially unable to
participate. He added that the Federal government is negotiating with the
Central Arizona Water Conservation District such issues as the cost of CAP water,
with the hope that the water will be affordable to use in settlements.
June 21, 1994
Page 4
JOINT SELECT COMMITTEE ON ARIZONA
GENERAL STREAM ADJUDICATIONS
Mr. Swan continued his presentation by addressing the government's position on
the de minimis issue reflected in a joint pretrial statement filed with the Gila
River adjudication Special Master and in a rule 26 disclosure statement in the
San Pedro River proceeding (copies provided to staff). He explained that the
documents reflect that the U.S. supports the concept of de minimis use
categorizations for the San Pedro watershed and that water uses which fall within
the established categories should be summarily adjudicated. Mr. Swan advised
that the basic concern of the government is that de minimis categorization and
summary adjudication means that those kinds of uses would continue to be added
on to the system without undergoing the adjudication scrutiny that others do.
Mr. Swan noted that the water uses which the Federal government supports in a de
minimis classification include stock watering from a stream, stockponds of two
surface acres or less and less than 15 acre feet in quantity and wells of less
than three acre feet per year for domestic purposes and one-half acre for lawn
or garden uses. He explained that the government does not agree that de minimis
uses should be allowed for domestic users who use water directly out of a stream,
feeling that such uses could possibly be illegal and should not be casually
sanctioned. Mr. Swan informed the Committee that the government's position on
these categorizations could possibly be modified in some minor respect.
Mr. Swan emphasized, however, that the de minimis issue is an area in which there
are great disagreements. He noted that the Apaches and the Gila River Indian
community do not agree with the government's position and believe the
proliferation of the de minimis categorization in great quantities could affect
their senior rights.
Mr. Swan commented on whether there is a confl i ct between the government's
position and the handling of the de minimis issue in New Mexico. He noted that
consultations with the Justice Department trial lawyer for the Little Colorado
River case, who is stationed in Albuquerque and who has handled the New Mexico
litigation for years, revealed little or no differences.
Senator Buster said he recalled that testimony at the last meeting indicated more
of a difference between New Mexico's de minimis categorization for stockponds and
that of the government. Mr. Swan suggested that Senator Buster consult with the
Department of Water Resources (DWR) on the matter. He noted that some states
have legislatively quantified the de minimis issue. Senator Buster said he
believed that was the case in New Mexico and asked if the Federal government left
de minimis users out of the adjudication process. Mr. Swan stated that those
users were not left out but were treated as too small to go through the process
individually and summarily added to the decree with the specified
quantifications. Senator Buster observed that the de minimis users were treated
very differently in New Mexico than they have so far been treated in Arizona.
Mr. Swan acknowledged that without a de minimis categorization process each of
the challenged claims in Arizona is subject to .a full litigation of the
attributes of the water right.
Senator Day asked if the State court has already issued an opinion on de minimis
use. Mr. Swan explained that the Special Master issued a de minimis decision in
JOINT SELECT COMMITTEE ON ARIZONA
GENERAL STREAM ADJUDICATIONS
June ,1994
Page 5
the Little Colorado River proceeding only for stock watering and stockpond uses.
He added that a decision on de minimis categorizations in the Gila River
adjudication should be issued soon. In response to a question from Senator Day
as to whether the de minimis classification could vary from case to case,
Mr. Swan indicated that an attempt is made to treat similar uses in the same
manner. However, he noted that an issue presented to the judge was whether
people should be forced to accept the de minimis categorization. Mr. Swan
further stated that any possible legislation concerning the de minimis issue
should reflect equal treatment for Federal lands.
Mr. Swan addressed the Federal government's relationship with the tribes. He
explained that the government files claims to water rights on behalf of a
community of Indians because of the Federal government's trustee relationship
with the tribes and because the Federal government owns the reservation and its
resources in a proprietary sense.
Mr. Swan commented on whether tribes can assert t~eir own interests by
participating in an adjudication along side the Federal government. He explained
that the government reopened the Arizona v. California case in the late 1970s to
litigate additional Indian reservation water rights, adding that Indian tribes
in Arizona, California and Nevada filed motions to intervene in the proceeding
in order to participate in their own right. Mr. Swan further explained that the
decision issued by the Special Master in the case (copy provided for staff)
inqicates that the Indian tribes have a right to protect their own interests and
that it is not prejudicial of the interests of other participants to have two
parties on behalf of Indian rights. Mr. Swan noted that the U.S. Supreme Court
ruled in 1983 with the Special Master that intervention by the tribes was
appropriate (copy provided for staff), setting a significant precedent.
Mr. Swan acknowledged that problems occasionally exist between the Federal
government and the tri bes in the adjudi cat ions process, such as with the
de minimis issue, and he explained that the government exercises independent
judgment concerning the differing opinions.
Mr. Swan also acknowledged that the U.S. government is the entity which has filed
the most challenges to claims. He explained that the government's reasons for
filing so many challenges include the following: the government does not know
what the Indian rights are, water rights in Arizona have not been managed well,
the government has a trust responsibility to the tribes and the beneficiary can
file challenges against the trustee.
In response to a question from Senator Arzberger concerning the government's
position on water rights on the San Pedro River that date back to the 1800s,
Mr. Swan indicated that the government attempts to determine whether the claims
are junior in time and injurious to the water right the government feels belongs
to the Gila River Indian community. He added that if ~he government decides that
is the case it would challenge the claims on whatever grounds it can discover.
Mr. Swan emphasized that the government did not challenge all of the rights on
the San Pedro River, noting that afterwards the Indian tribes challenged all the
claims.
June 21, 1994
Page 6
JOINT SELECT COMMITTEE ON ARIZONA
GENERAL STREAM ADJUDICATIONS
Representative Bowers said the government's relationship to the tribes is a
confusing one in that it appears the government represents the tribes at times
and not at other times. He questioned if a legislative acceleration of the
process could eventually be challenged by a tribe. Mr. Swan clarified that the
Federal government does represent the tribes, which are bound by the government's
participation in the adjudications. He added that a tribe disputing the
government's handling of a case could file a claim for damages but could not
receive additional water. However, he pointed out that a tribe participating in
the process along side the government can present differing evidence and the
judge can rule in the tribe's favor.
Senator Buster asked if a tribe litigating along side the Federal government can
challenge a decision that supports the government's position. Mr. Swan said in
his opinion the tribe cannot challenge the decision. Senator Buster asked what
the effect would be of prioritizing the completion of the hydrographic survey
reports. Mr. Swan pointed out the difficulty of litigating and working out
settlements at the same time. He acknowledged that it may be a good idea to
litigate the Indian rights up front, but he indicated that would require the
government to shift its energy and funds in that di rect i on with 1ess into
settlement. Mr. Swan emphasized that the government can request the court to
temporarily halt a proceeding if sufficient motivation for settlement exists.
Representative Bowers asked what the Federal interest is in the navigability
issue and how it relates to water rights. Mr. Swan stated that the government's
relationship to navigability has to be viewed on an agency-by-agency basis, and
he contended that the issue is one of land ownership and has no meaningful
relationship to water rights. Representative Bowers addressed a speech given by
Secretary Babbitt on November 13, 1992, in which he states the importance of the
navigability issue. Mr. Swan said he was not sure of all that the Secretary was
intending to communicate in that particular speech. However, he contended that
navigability means many things in a context completely different from water
rights, having much to do with the power of Congress over navigable rivers.
Mr. Swan continued his presentation by addressing pending Federal court cases.
He noted that the U.S. Supreme Court decision in Arizona v. San Carlos Apache
Tribe in 1983 (copy provided for staff) refers to pending Federal court cases in
Arizona, indicating that the adjudication process is sufficient in State court
but that the Federal forum should remain available if warranted by a significant
change of circumstances. Mr. Swan explained that the government provides yearly
briefings to the judge concerning the events of some pending cases, particularly
the Little Colorado River and Gila River adjudications. He informed the
Committee that he knows of no proposal being planned for Federal court concerning
any of the pending Federal cases. He explained that situations which might cause
such action include a perceived loss of McCarran Amendment jurisdiction,
extremely slow progress or perceived blatant disrespect for Federal rights.
Mr. Swan concluded his presentat i on by comment i ng on DWR' s document dated
June 1, 1994, which provides an outline of various proposals. He emphasized the
need for concern regarding the separation of powers between the Legislature and
the Judiciary, as highlighted in two case decisions from the Ninth Circuit Court
JOINT SELECT COMMITTEE ON ARIZONA
GENERAL STREAM ADJUDICATIONS
June 21, 1994
Page 7
of Appeals and the U.S. Supreme Court (copies provided to staff). On the role
of the Special Master, Mr. Swan said the position functions adequately at the
present time. He indicated the creation of a settlement judge may be a good
idea, adding that many disputes can be resolved through settlement.
Senator Arzberger asked if the Federal government takes prior beneficial use into
consideration in the adjudication process, to which Mr. Swan answered
affirmatively. However, he said problems occur since the water rights doctrine
in the West involves a priority system. Senator Arzberger asked if the
Department of Interior and the Department of Justice should represent individual
citizens in the adjudications as well as the Federal government. Mr. Swan
responded that the agencies do not have that authority. Senator Arzberger asked
what would happen if the State began to legislatively recognize certain water
rights and claims. Mr. Swan said he could not speculate whether that would be
a permissible act of the Legislature, and he reiterated the need for the State's
attorneys to study the case decisions in order to make a judgment about what is
permissible legislative action.
Senator Day asked Mr. Swan to indicate whether the issues in the DWR outline
should be handled legislatively or in another matter, adding that she believes
the creation of a settlement judge would not have to be legislated. Mr. Swan
agreed that legislation would probably not be needed for a settlement judge.
Mr. Swan continued addressing the DWR document as outl ined in its table of
contents as fo 11 ows: He offered no comment on the order of 1it igat ion;
representation by nonlawyers would probably be satisfactory; no comment on the
creation of an ombudsman; an enhanced DWR role may be beneficial; in commenting
on the recommendation concerning late statements of claimants, Mr. Swan pointed
out that everyone lives with deadlines; no comment on miscellaneous procedural
issues; the issue of de minimis rights was covered in his earlier presentation;
no comment on validity of filings and claims; issues that involve difficult water
rights problems and which need to be considered very carefully include
quant ifi cat i on of appropri at i ve ri ghts, reso1ut i on of confl i ct i ng fil i ngs, change
in use, change in point of diversion, forfeiture, sufficient causes for nonuse
and pre-1919 rights; no comment on public trust values but the recommendations
under miscellaneous issues would probably be helpful.
Mr. Swan contended that DWR's characterization of the definition of appropriable
water or subflow is somewhat inaccurate since it seems to suggest that the
Legislature or the court can determine what is subflow or groundwater. Mr. Swan
explained that the jurisdiction of the court is not simply set by the
Legislature's definition of subflow but is also set by Federal law concerning
groundwater pumping. He suggested the need to refer to the decision in U.S. v.
Cappaert, which explains the Federal reserve right law regarding groundwater
pumping and actually sets the jurisdiction of the court.
Mr. Swan acknowledged that the adjudication process is a painful one but he
emphasized the end result will be river systems that are appropriately managed.
June 21, 1994
PageS
JOINT SELECT COMMITTEE ON ARIZONA
GENERAL STREAM ADJUDICATIONS
Speaker Killian asked if the Federal government plans to file water rights claims
on behalf of endangered species in Arizona. Mr. Swan said it is his opinion that
the government will not be filing such claims. Speaker Killian commented on a
letter written by Secretary Babbitt in which he refers to the Federal Energy
Regulation Commission (FERC), which grants licenses for non-Federal dam building.
Speaker Killian observed that such licenses are granted for terms not to exceed
50 years, and he pointed out that most of the dams were built in the 1930s and
1940s. He asked how many dams in Arizona fall into that category. Mr. Swan
indicated that the only FERC structure in Arizona he is aware of is Arizona
Public Service's project at Fossil Creek.
Ed locher. representing himself. said he has his own well on a couple of areas
in the Verde Valley area. He expressed concern that the adjudications process
places him in the same situation as people who filed claims for surface water.
He noted that he does not have any prior claims and does not stand a chance
against claims filed by the Indians or Federal government. In addition,
Mr. Locher expressed concern about the financial hardsh~p of trying to compete
with the major parties involved in the process.
Speaker Killian commented on recent discussions in the West as to whether the
Federal government actually has the constitutional authority to own lands within
the State, and he asked legal staff to determine if any judicial decisions or
acts of Congress address the issue. He also expressed interest in knowing the
implications for Arizona of Pollard v. Hagan, a U.S. Supreme Court ruling
indicating that Alabama did not have the right to give away some of its
unappropriated and unused lands at the time of statehood.
Senator Spri nger offered three proposals for cons iderat ion pertain i ng to de
minimis users, nonattorney representatives and the Public Trust Doctrine (filed
with original minutes).
Senator Buster brought up the concept of havi ng the Commi ttee form breakout
groups to address various issues. Senator Springer objected to the Committee
dividing into smaller groups, citing the need for the entire Committee to hear
the testimony and the difficulty of interested parties to attend each breakout
group. Senator Goudi noff agreed with the concerns expressed by Senator Spri nger.
Representative Keegan suggested that the Committee would have a better chance of
accomplishing its goals in smaller groups and contended the time spent in
meetings would probably not be any greater than if the full Committee continued
to meet each time. He added that Committee members would be welcome to attend
any of the breakout groups.
Representative Conner asked what the groups would consist of, noting that he
tended to agree with Senator Springer. Senator Buster explained that the groups
would address four issues, including procedural, de minimis, definition of
appropriable water (chaired by Senator Springer) and surface water code (chaired
by Representat i ve Conner). Representat i ve Conner suggested that four groups
would probably not be necessary, adding that he supports the proposal concerning
de minimis use presented by Senator Springer. Senator Buster contended that the
issue needs more information and that there is a sharp divergence of opinion on
JOINT SELECT COMMITTEE ON ARIZONA
GENERAL STREAM ADJUDICATIONS
June 21 t 1994
Page 9
the appropriable water issue. Senator Arzberger said he does not feel the
Committee shoul d break into groups, and he cited the probl em of achi evi ng a
quorum with smaller committees.
Senator Buster indicated that another meeting would be held in July to hear
testimony from the Special Master and the judges, at which time the issue of
breakout groups could be discussed further. He reiterated the need to streamline
the Committee process by having smaller groups focusing on individual issues.
The meeting adjourned at 4:15 p.m.
submitted,
C.~
Stell
Secretary
(Attachments and tapes on file in the Office of the Secretary of the Senate.)
NAME
Please Print
~'-""+ MEETING OF COMMITTEE ON
REPRESENTING
Hear; ng Room No.-.---
BILL NO.
.--7. i \1 (-ICh)
.; C.
.5c1.- ;::- - V~Kj)c: if) L L ~i
.~#c-r: _' Vt:.,~,LJ£ !4L-l>LY
,1 I ) S-e1+- VC 1\ Dt.. U,R !~t L.1-
•
At'v\ \tv t1 A--
NAME
Please Print
MEETING OF COMMITTEE ON
REPRESENTING
Hearing Room No.
--'------
DATF. 6/2.-1
TIME 2.-fm
BILL NO.
I E.R WA) ,bB- DV vJ lAd ~t g•.Q ,
s: '0. rrC-- I/. ktr. . C ((.. V 1 {&r. 1:rr.- 't (J Ii--
I
ARIZONA STATE LEGISLATURE
JOINT SELECT COMMITTEE ON ARIZONA
GENERAL STREAM ADJUDICATIONS
Minutes of Meeting
Tuesday, July 19, 1994
Senate Hearing Room 1 - 10:00 a.m.
Members Present
Senator Springer
Senator Turner
Senator Day, Acting Chairman
Members Absent
Speaker Killian
Representative Conner
Representative Brown
Senator Buster, Cochairman
Senator Arzberger
Senator Goudinoff
Rita Pearson -
Susan McJunkin
Dan Shein
Representative Keegan, Cochairman
Representative Bowers
Representative Hanley
Ex-officio member
... Senator Day, as Acting Chairman, called the meeting to order at 10:25 a.m. and
attendance was noted. She indicated that presentations and testimony would be
heard but no action would be taken since a quorum was not present.
PRESENTATIONS
Stanley G. Feldman. Chief Justice. Arizona Supreme Court. acknowledged that the
judiciary does not often place itself in a position to discuss cases in
litigation. However, he stated that discussion of the stream adjudication in
th is forum was appropri ate since over 25,000 citizens of the State and over
80,000 claims are involved, occupying a vast amount of judicial resources and
concerning one of the most vital subjects in Arizona (background information
filed with original minutes). Chief Justice Feldman contended that water law
actually represents the history of the State, and he commented on the importance
of assessing the current situation and exploring ways to facilitate the process.
Chief Justice Feldman explained that no overall adjudication of water rights in
the State can be made without adjudicating the rights of the U.S. in terms of the
land owned by the government and its rights as trustee for the Indian tribes.
He added that because of the doctrine of sovereign immunity the U.S. cannot be
required to participate without its consent in any lawsuit or administrative
proceeding that will affect its own rights or its trustee rights. Chief Justice
Feldman noted that the U.S. has consented by the McCarran Amendment to waive its
sovereign immunity in a comprehensive litigation of water rights, adding that the
Legislature passed the statute in 1979 which required the courts to proceed in
July 19, 1994
Page 2
MINUTES OF JOINT SELECT COMMITTEE ON
ARIZONA GENERAL STREAM ADJUDICATIONS
that manner (further i nformat i on on McCarran Amendment fil ed with ori gi na1
minutes).
Chief Justice Feldman introduced Judge Minker from C1 ifton , who presides over the
Little Colorado River adjudication, and John Thorson, the Special Master
appointed by the Arizona Supreme Court.
Chief Justice Feldman commented on the various orders that have been made on both
the Supreme Court and trial court levels with regard to case management, all of
which are designed to facilitate the participation of individual claimants. He
also noted that claimants can make appeals in the middle of a case due to the
length of the proceedings. He indicated that six issues have been identified as
the subject of interim appeals, and he provided a memo from the Supreme Court's
staff attorney describing the cases which have been decided to date (filed with
original minutes).
Chief Justice Feldman stated that two more issues will be argued next February
dealing with the rights of the Federa