In Re in Re the General Adjudication of All Rights

SUPREME COURT OF ARIZONA
En Banc
IN RE THE GENERAL ADJUDICATION ) Arizona Supreme Court
OF ALL RIGHTS TO USE WATER IN ) No. WC-07-0002-IR
THE GILA RIVER SYSTEM AND SOURCE )
) Maricopa County
) Superior Court
) No. W-1
) W-2
) W-3
) W-4
) (Consolidated Cases)
)
) Contested Case No. W1-208
)
) O P I N I O N
__________________________________)
Interlocutory Appeal from the Superior Court in Maricopa County
The Honorable Eddward Ballinger, Jr., Judge
Affirmed
________________________________________________________________
SACKS TIERNEY, P.A. Scottsdale
By Judith M. Dworkin
Marvin S. Cohen
Attorneys for City of Tucson
SOMACH SIMMONS & DUNN Paradise Valley
By Robert B. Hoffman
Attorneys for Farmers Investment Co.
and Farmers Water Co. (FICO)
THE SPARKS LAW FIRM, P.C. Scottsdale
By Joe P. Sparks
Susan B. Montgomery
Robyn L. Interpreter
Attorneys for Pascua Yaqui Tribe and Intervenors
San Carlos Apache Tribe, Yavapai-Apache Nation and
Tonto Apache Tribe
JONATHAN L. JANTZEN, TOHONO O’ODHAM NATION Sells
ACTING ATTORNEY GENERAL
By Jonathan L. Jantzen, Acting Attorney General
Attorneys for Tohono O’Odham Nation
1
RONALD J. TENPAS, ACTING ASSISTANT Washington, DC
UNITED STATES ATTORNEY GENERAL
MICHAEL B. MUKASEY,
UNITED STATES ATTORNEY GENERAL
By John L. Smeltzer
F. Patrick Barry
Attorneys for the Department of Justice,
United States of America
RYLEY CARLOCK & APPLEWHITE, P.A. Phoenix
By L. William Staudenmaier, III
Attorneys for Arizona Public Service Company
SALMON LEWIS & WELDON, P.L.C. Phoenix
By John B. Weldon, Jr.
Lisa M. McKnight
Attorneys for Salt River Valley Water Users’ Association
and Salt River Project Agricultural Improvement and
Power District
Jennifer K. Giff Sacaton
And
Rodney B. Lewis Sacaton
And
John T. Hestand Chandler
Timothy L. Pierson
Ruth E. Koester
Ann Marie Chischilly
And
AKIN GUMP STRAUSS HAUER & FELD, L.L.P. Washington, DC
By Donald R. Pongrace
Attorneys for Gila River Indian Community
________________________________________________________________
R Y A N, Justice
2
I
A
¶1 This case arises from the ongoing adjudication of
rights to the use of Gila River water and the impact of recent
federal legislation facilitating the resolution of tribal water
claims subject to the adjudication.1
¶2 In 2004, Congress passed the Arizona Water Settlements
Act (“AWSA”), Pub. L. No. 108-451, 118 Stat. 3478 (2004). Title
III of the AWSA authorizes the settlement of the federal water
rights claims of the Tohono O’odham Nation (“Nation”).2 Under
1
For an outline of the facts and procedural history of this
ongoing adjudication, see In re the General Adjudication of All
Rights to Use Water in the Gila River System and Source, 195
Ariz. 411, 414, ¶ 5, 989 P.2d 739, 742 (1999) (“Gila River
III”); San Carlos Apache Tribe v. Superior Court ex rel. County
of Maricopa, 193 Ariz. 195, 202, ¶ 3, 972 P.2d 179, 186 (1999);
In re Rights to the Use of the Gila River, 171 Ariz. 230, 232-
33, 830 P.2d 442, 444-45 (1992) (“Gila River I”).
2
The Arizona Department of Water Resources’ Technical
Assessment of the Tohono O’odham Nation Water Rights Settlement,
(“assessment”) describes the geographic scope of the agreement
as follows:
The Settlement Agreement encompasses only those lands
of the Nation that are within the “Tucson Management
Area,” which is a geographic area comprised of the
Tucson Active Management Area . . . , the Santa Cruz
Active Management Area, and that portion of the Upper
Santa Cruz Basin not within either of the Active
Management Areas. Included within the Tucson
Management Area are the entire San Xavier Reservation
and the eastern portion of the Schuk Toak District of
the Sells Papago Reservation.
3
the auspices of the AWSA, the Nation, the United States, the
City of Tucson, Farmers Investment Company (“FICO”), and ASARCO,
Inc. (“the settling parties”) sought entry of judgment
confirming a settlement agreement among them. Under the
settlement agreement, the Nation agreed to give up its claim to
federally reserved groundwater rights on the Nation’s
reservation in return for commitments from the United States to
provide Colorado River water through the Central Arizona Project
(“CAP”), and agreements from the City of Tucson, FICO, and
ASARCO to limit groundwater pumping and compensate the Nation
for injuries caused by pumping.
¶3 The AWSA is part of a broader effort by federal,
state, and tribal entities to resolve water rights issues. As
such, the AWSA contemplates more than the settlement agreement.
For example, encouraged by Congress, the Arizona Legislature
adopted legislation designed to protect groundwater in and
Assessment at 1-1 to 1-2, available at http://www.azwater.gov/
dwr/content/Hot_Topics/AZ_Water_Settlements/SAWRSA/TohonoOodham
NationWaterRightsSettlement.pdf. Both the San Xavier
Reservation and the Schuk Toak District are part of the Nation’s
lands. Id. These two areas comprise all of the Nation’s lands
within the upper basin of the Santa Cruz River, a Gila River
Tributary. The Tucson Management Area is defined in the AWSA to
mean the Tucson Active Management Area, the Santa Cruz Active
Management Area, and that part of the upper Santa Cruz River
Basin not within either management area. AWSA § 303(48). An
Active Management Area is a geographic area designated under the
Arizona Groundwater Code as requiring active groundwater
management. See Ariz. Rev. Stat. (“A.R.S.”) §§ 45-411, -411.02,
-411.03 (2003).
4
around the San Xavier Reservation near Tucson. See 2005 Ariz.
Sess. Laws, ch. 143 (1st Reg. Sess.) (codified at A.R.S. §§ 45-
2701 to –2702, 45-2711 to -2712 (Supp. 2007)) (“Groundwater
Protection Program”). Thus, the AWSA recognizes a comprehensive
effort to both satisfy the Nation’s claims and protect water
resources.
¶4 The timeliness of judicial approval and entry of
judgment, however, is critical. For Title III of the AWSA to
take effect, the Secretary of the Interior must publish certain
findings by December 31, 2007, including that “the judgment and
decree attached to the Tohono O'odham settlement agreement . . .
has been approved by the [s]tate court having jurisdiction over
the Gila River adjudication proceedings, and that judgment and
decree have become final and nonappealable.” AWSA § 302(b)(5),
(c). Likewise, in order for the Arizona legislation to become
effective, the same finding must be made. 2005 Ariz. Sess.
Laws, ch. 143, § 15 (requiring finding on or before December 31,
2010).
B
¶5 The settling parties filed an application for approval
of the Tohono O’odham Nation settlement with the Gila River
adjudication court in July 2006. The adjudication court then
requested that the Arizona Department of Water Resources
(“ADWR”) prepare a factual and technical assessment of the
5
proposed settlement. In October 2006, ADWR submitted its
assessment.
¶6 The Pascua Yaqui Tribe (“Tribe”)3 filed objections to
the judgment and decree in December 2006. A hearing on the
objections took place in April 2007. In June 2007, the
adjudication court summarily disposed of the Tribe’s objections.
The court denied the Tribe’s motion for reconsideration in July
2007 and entered the judgment and decree along with a separate
order detailing its reasoning.
¶7 Following the adjudication court’s rejection of the
Tribe’s objections, both the settling parties and the Tribe
sought interlocutory review in this Court. See Special
Procedural Order providing for Interlocutory Appeals and
Certifications (Sept. 26, 1989) (“Interlocutory Appeals Order”).
Because of the time constraints imposed by the AWSA, this Court
set an expedited briefing schedule and held oral argument on
November 20, 2007.
¶8 In accordance with §§ (B)(3) and (B)(4) of the
Interlocutory Appeals Order, we accept interlocutory review of
this case because it is in the interest of justice and will save
time, expense, and resources. We have jurisdiction under
Article 6, Section 5(3) of the Arizona Constitution.
3
The Tribe’s reservation borders the north side of the San
Xavier Reservation.
6
II
¶9 Recognizing the importance of facilitating the
resolution of tribal claims, on May 16, 1991, this Court issued
a Special Procedural Order providing for the Approval of Federal
Water Rights Settlements, Including Those of Indian Tribes
(“Special Order” or “Special Procedural Order”).
¶10 The Special Order does four things. First, it
establishes the circumstances under which special settlement
proceedings can be initiated. Special Order § (A)(1)-(5).
Second, it sets forth the process by which parties may apply to
the court to initiate the special proceedings and certain
notices that must issue. Id. §§ (B)(1)-(3), (E)(1)-(3). Third,
the Special Order allows other claimants to object to court
approval of the settlement. Id. § (C)(1)-(4). Fourth, the
Special Order provides for resolution of objections and approval
of the settlement by the adjudication court. Id. § (D)(1)-(7).
¶11 Through the Special Order, this Court sought to
balance the rights of Indian tribes to seek settlement of their
claims against the rights of other claimants. Accordingly, the
Special Order provides claimants4 with the opportunity to object
4
The parties dispute whether the Tribe is properly a
claimant and, thus, whether it has “standing,” under the terms
of the Special Order, to object to the settlement agreement and
judgment and decree. The adjudication court expressed “serious
7
if the settlement “would cause material injury to the objector’s
claimed water right,” the conditions for approval of such a
settlement have not been met, or when “the water rights
established in the settlement agreement . . . are more extensive
than the Indian tribe . . . would have been able to establish at
trial.” Id. § (C)(1)(a)-(c).
¶12 The Special Order further provides that after
resolution of objections, the adjudication court shall approve a
settlement if there is a reasonable basis to conclude that the
water rights of the settling Indian tribe are no more extensive
than would be proved at trial, the objector is not bound by the
settlement and may pursue its own remedies against the settling
tribe, and the settlement agreement has been reached in good
faith. Id. § (D)(6)(a)-(c).
¶13 The balance struck by the Special Order seeks to
prevent any tribe from using a settlement to gain additional
rights to water while protecting other parties whose own rights
would be injured by the settlement. At the same time, the
doubt” about “whether the [] Tribe can be properly considered a
claimant . . . .” Minute Entry, June 4, 2007, at 2.
Nevertheless, the court ruled that “[e]ven if the [] Tribe is
viewed as having standing to object, the Court must grant
summary disposition . . . because the Proposed Settlement
Agreement and proposed judgment cannot be used to affect the []
Tribe’s water rights, claims, or entitlements to water.” Id.
Without deciding this issue, we assume for purposes of this
opinion that the Tribe can act as a claimant.
8
Special Order provides for judicial approval when the settling
tribe has taken steps to preserve other claimants’ rights and
remedies. Put simply, the expectation under the Special Order
is that a settlement will be approved if the settling tribe is
no better off than it would be after the final adjudication of
all claims, and the settlement preserves the remedies of the
non-settling claimants. To prevent approval, an objecting party
must show that its claimed water right would suffer “material
injury.”
¶14 The Tribe did not object to the settlement below on
the grounds that the Nation received rights to more water than
those to which it is entitled. Rather, the Tribe claimed that
the settlement agreement causes material injury to its rights.5
The adjudication court rejected the objections, holding that the
Tribe “stands in the same position whether or not the Proposed
Settlement Agreement is approved . . . .” Minute Entry, June 4,
2007, at 2. The Tribe appeals on numerous grounds. However,
because the settlement determines only the water rights of the
Nation, does not provide the Nation with any federal reserved
rights, restricts the amounts of groundwater the Nation may
5
Although the Tribe did object that the conditions required
by this Court to initiate the proceedings had not been met, its
argument that the adjudication court erred in dismissing that
objection is waived. See Webster v. Culbertson, 158 Ariz. 159,
163, 761 P.2d 1063, 1067 (1988) (issue not raised in opening
brief is waived).
9
pump, and expressly reserves all rights and claims of the Tribe,
we conclude that none of the Tribe’s claims has merit.
III
A
¶15 The Tribe first argues that, notwithstanding the
Special Order limiting the adjudication court to the
consideration of “material injuries,” the adjudication court has
an “inherent duty” to consider any arguments challenging the
legality and constitutionality of the settlement agreement,
regardless of whether an objector shows a material injury.6
6
The San Carlos Apache Tribe, Yavapai-Apache Nation, and
Tonto Apache Tribe (“the Apache Tribes”) join the Tribe’s
argument here because the adjudication court relied on its order
in Contested Case No. W1-207, the Gila River settlement, in
which it stated that the Special Order “limits [the court’s]
inquiry in connection with considering approval of the
Settlement Agreement to the matters explicitly set forth in the
Order.” See Minute Entry, January 23, 2007. In this proceeding
(W1-208), the adjudication court issued an order stating that
the “limitations” in the Special Order, as previously determined
in W1-207, would “restrict the Court’s inquiry in connection
with considering approval of the [Nation’s] . . . Settlement.”
Minute Entry, March 20, 2007.
The Apache Tribes and the Lower Gila River Water Users had
previously filed a petition for interlocutory review in W1-207.
This Court has not acted on that petition. The adjudication
court entered a judgment and decree on September 13, 2007,
approving the Gila River settlement.
Because the Apache Tribes’ objection to the adjudication court’s
interpretation of the Special Order mirrors the one raised here,
they sought and were granted leave to intervene. Likewise,
because the issue in W1-208 is the same as the one in W1-207,
the Gila River Indian Community and the Salt River Project were
10
¶16 Indeed, the Tribe raised numerous objections to the
legality and constitutionality of the settlement agreement.7 The
Tribe, however, concedes that these arguments are separate from
any objection based on material injury caused by the agreement.
Thus, the Tribe asks us to hold that the Special Order is
invalid insofar as it limits the adjudication court’s obligation
to consider objections that do not turn on the settlement
agreement itself.8
¶17 The “constitutional” objections raised by the Tribe
are issues of law, some of which involve separate parties
altogether. For example, the Tribe challenges the Groundwater
Protection Program and the Secretary of the Interior’s
negotiation of CAP contracts, issues well outside the
adjudication court’s purview. As the adjudication court found,
these arguments do not depend on the settlement agreement and
fall outside the “narrow scope of . . . review . . . mandated by
permitted to intervene and file briefs supporting the
adjudication court’s resolution of this issue.
7
These included whether the Groundwater Protection Program
improperly delegated authority to the Nation and whether
subsequent modifications of the Tribe’s own contract with the
Secretary for the delivery of CAP water violated the state and
federal constitutions.
8
To the extent that our order in the separate Little
Colorado Adjudication differs from the instant Special Order, we
decline to revisit the Special Order, now midway through its
second decade in effect. Because the scope of the Little
11
the [Special Order].” See id. They can be addressed at a later
date without any injury to the Tribe from delay.
¶18 Moreover, the Tribe’s constitutional challenge to the
Groundwater Protection Program misconstrues its legal effect.
The program sets technical standards for defining when non-
exempt wells may be drilled in a narrow perimeter around the
Nation’s lands and directs ADWR to enforce those standards.9 See
A.R.S. § 45-2711. Although the Nation may object to ADWR’s
decision to permit new wells in the area encompassed by the
settlement agreement, it cannot veto ADWR’s decision to permit
new wells. Id. § 45-2712. Moreover, the program enacts
standards where none were present before, as the State
Groundwater Code does not otherwise apply to Indian
reservations. Therefore, the Tribe has suffered no injury
because of the adoption of the program.
¶19 Contrary to the Tribe’s assertion, the Groundwater
Protection Program does not “invade[] the exclusive province of
the Court . . . to adjudicate and protect the [Tribe’s water
rights].” Because the settlement agreement, in compliance
with § D(6)(b) of the Special Order, does not bind the Tribe, if
Colorado Adjudication’s order is not before us, we do not speak
to its provisions.
9
Wells that pump fewer than thirty-five gallons per minute
and are used for limited purposes are exempt from the permitting
requirements. A.R.S. § 45-454.
12
the adjudication court determines that new wells permitted under
the Groundwater Protection Program would harm the Tribe’s
federal reserved groundwater rights, the court can grant
appropriate relief. See A.R.S. § 45-2702.
¶20 The Tribe’s constitutional claims with respect to its
CAP contract are founded on a belief that the settlement would
impermissibly impair its contract rights. These claims are
meritless. Title I of the AWSA provides that pre-existing
agreements or rights to the use of Colorado River water are not
affected. AWSA § 108. If the United States should at some
future point breach its contract with the Tribe, the Tribe is of
course free at that time to seek an appropriate remedy.
B
¶21 The Tribe next contends that the adjudication court
unconstitutionally prevented it from proving material harm in
the proceedings below. The essence of the Tribe’s argument is
that the settlement agreement materially injures the Tribe’s
water rights, specifically its groundwater rights and its
surface water rights under federal law, and “deplete[s] and
deprive[s] the Tribe of its federal reserved water rights,”
violating the Tribe’s due process rights.
¶22 This argument fails for several reasons. First,
because the settlement is not binding on the Tribe, it remains
free to assert its rights against the settling parties and
13
others. In compliance with the Special Order, the Nation’s
settlement prohibits the agreement from being interpreted to
affect the rights of any other claimant. Special Order §
(D)(6)(b). Indeed, the AWSA requires the same. AWSA § 305(e)
(“Nothing in this section authorizes the Secretary to acquire or
otherwise affect the water rights of any Indian Tribe.”). Such
claimants retain all remedies available before approval of the
settlement necessary to protect their rights in the general
adjudication. Thus, the settlement agreement and judgment and
decree do not and, indeed, cannot affect the Tribe’s rights or
materially injure the Tribe. See Martin v. Wilks, 490 U.S. 755,
762 (1989) (“A judgment or decree among parties to a lawsuit
resolves issues as among them, but it does not conclude the
rights of strangers to those proceedings.”), superseded by
statute on other grounds, 42 U.S.C. § 2000e-2(n); City of Warren
v. City of Detroit, 495 F.3d 282, 287 (6th Cir. 2007)
(“[P]arties who choose to resolve litigation through settlement
may not dispose of the claims of a third party . . . .”)
(quoting Local No. 93, Int’l Ass’n of Firefighters v. City of
Cleveland, 478 U.S. 501, 529 (1986)).
¶23 Moreover, as a legal matter, nothing in the settlement
leaves the Tribe any worse off with regard to the water
available to satisfy its claims than it is now. Section 312(d)
of the AWSA provides in part that “[t]he Nation and the United
14
States as Trustee . . . shall have the right to assert any
claims granted by a State law implementing the groundwater
protection program described in paragraph 8.8 of the Tohono
O’odham settlement agreement.” In turn, paragraph 8.8 of the
Nation’s settlement agreement requires the settling parties “to
support the enactment of legislation by the State that would
implement the groundwater protection program for the San Xavier
Reservation.”
¶24 As noted above, see supra ¶ 3, the legislature did
enact the Groundwater Protection Program that will go into
effect once this settlement is final and nonappealable and has
been published in the Federal Register. See 2005 Ariz. Sess.
Laws, ch. 143, § 15 (citing AWSA § 302(c)). This program is
intended to control the amount of groundwater pumping that
occurs near the Tribe’s land. See, e.g., A.R.S. § 45-2702
(providing that the adjudication court has jurisdiction over,
among other things, the Groundwater Protection Program). Thus,
the Tribe’s claims of injury are premature and speculative.
Moreover, because the program provides limits on pumping that
did not exist before, it cannot by its own terms put the Tribe
in a situation worse than its current one.
¶25 The Tribe asserts that a prior decision of this Court,
San Carlos Apache Tribe v. Superior Court ex rel. County of
Maricopa, holds that because of the finite nature of water
15
resources, a court must look behind the settlement to determine
if the agreement “may affect the availability of water” for
other claimants. 193 Ariz. 195, 213, ¶ 43, 972 P.2d 179, 197
(1999). The issue in San Carlos Apache Tribe, however, was
whether, by requiring certain legal conclusions, the legislature
violated the strict separation of powers mandated by the Arizona
Constitution. Id. Here, in contrast, there is no separation of
powers issue.10
¶26 Also, the Tribe argues that this Court recognizes a
violation of due process when a claimant is required to wait
until injury occurs before pursuing remedies in the
adjudication. See id., 193 Ariz. at 212, ¶ 39, 972 P.2d at 196.
However, in San Carlos Apache Tribe, the legislature had
10
The Tribe misunderstands the import of other decisions by
this Court as well. For example, the Tribe suggests that under
our holding in In Re the General Adjudication of All Rights to
Use Water in the Gila River System and Source, 212 Ariz. 64, 82,
¶ 67, 127 P.3d 882, 900 (2006), a party challenging water rights
established in a decree must return to the originating court to
challenge the decree. Our holding in that case, however,
addressed the deference owed to the originating court when a
party argued its entitlement to relief from an apparently
binding decree. Id.Similarly, the Tribe recognizes that Arizona law holds water
rights are property rights and that notions of notice and an
opportunity to be heard attach, but this observation is beside
the point. See Gila River I, 171 Ariz. at 235-36, 830 P.2d at
447-48. The Tribe had sufficient notice and opportunity to be
heard. The opportunity to be heard is not an opportunity to
receive a particular result. And, in any event, the Tribe’s
water rights are not affected by the settlement agreement.
16
dictated the summary adjudication of “de minimis use” without
judicial consideration of the impact on any individual
watershed. Id. at ¶ 38. But, in compliance with the terms of
the Special Order, see § (D)(6)(a), the quantity of water
received by the Nation under the settlement is below the lowest
amount of water the Nation might have succeeded in proving at
trial. As a matter of law, therefore, the Tribe cannot
demonstrate material injury to its water rights.
¶27 Because the Tribe is not bound by the judgment and
decree approving the settlement, and the Nation will not receive
more water than it could have proved at trial, the Tribe’s
argument that the settlement violates its due process rights is
unfounded. See Mitchell v. W.T. Grant Co., 416 U.S. 600, 611
(1974) (postponement of judicial inquiry not an inherent denial
of due process).
C
¶28 The Tribe argues that these proceedings may violate
federal law by permitting a settlement that strips the
adjudication of its “comprehensive” nature.
¶29 To be sure, the McCarran Amendment, 43 U.S.C. § 666,
is crucial to the operation of state water adjudications. Under
the amendment, the United States consents to waive its sovereign
immunity and be bound by state court decisions in water
adjudications. Id. The United States Supreme Court has held
17
under the amendment that federal courts should defer to state
court adjudications, effectively forcing federally recognized
tribes into the adjudication process. See Arizona v. San Carlos
Apache Tribe, 463 U.S. 545, 569 (1983) (“The McCarran Amendment
. . . allows and encourages state courts to undertake the task
of quantifying Indian water rights in the course of
comprehensive water adjudications.”). Although the McCarran
Amendment’s purpose is to limit litigation and confusion over
property rights, id., the Tribe contends that allowing the
settlement here to proceed would strip the adjudication of its
comprehensive nature and jeopardize any submission to state
court jurisdiction by the United States. But interpreting 43
U.S.C. § 666 in this manner would make it impossible for any
settlement to occur. The McCarran Amendment and the related
Supreme Court case law emphasize the resolution, not
exacerbation, of water rights conflicts.
D
¶30 Next, the Tribe insists that the adjudication court
should have stayed the proceedings until the ADWR assessment was
revised to comply with that court’s order requesting the
assessment. But nothing in the court’s order expressly required
consideration of the impact of the settlement on the Tribe.
Further, a technical assessment of the Tribe’s rights is not
relevant to determining material injury to the Tribe because it
18
is not bound by the settlement, and the settlement does not give
the Nation any rights that it does not already hold. The
Tribe’s argument envisions a quantification of its rights as a
precondition to a settlement of the Nation’s rights. If that
were the case, it would nearly be impossible for settlements
such as this one to be reached.
E
¶31 The Tribe asserts that, by including in the judgment
and decree a reference to the Nation’s CAP contract, the
adjudication court acted outside its jurisdiction. The judgment
and decree entered by the adjudication court provides that under
the terms of the settlement agreement, the Nation is entitled to
79,000 acre feet per year of water within the Tucson Active
Management Area. The judgment and decree stated that 66,000
acre feet per year of this water “shall” be obtained through a
CAP contract.
¶32 We agree that by describing the terms of the
settlement it was approving, the adjudication court could not
adjudicate rights beyond its jurisdiction. See Maricopa-
Stanfield Irrigation & Drainage Dist. v. Robertson (Smith), 211
Ariz. 485, 494, ¶ 57, 123 P.3d 1122, 1131 (2005). Congress, not
the adjudication court, authorized amendments to the Nation’s
CAP contract in section 309(g) of the AWSA. The court merely
stated the operative provisions of the agreement and the CAP
19
contract resulting from it.
F
¶33 Finally, the Tribe claims that, because the
adjudication court relied on an allegedly incomplete ADWR
assessment and did not hold an evidentiary hearing as required
by § (D)(6) of the Special Order, the settling parties did not
meet their burden of proof under the Special Order. This
contention fails on several grounds.
¶34 First, the Special Order leaves to the discretion of
the adjudication court whether to have an assessment prepared.
Special Order § (B)(3)(f). Second, chapter 7 of ADWR’s
assessment addressed the probable impacts of the settlement,
including impacts on water resources, on other claimants in the
Gila River adjudication, and on groundwater rights.
¶35 Third, § (D)(5) of the Special Order provides that
“[u]pon completion of all hearings on objections, . . . the
general adjudication court shall enter a judgment either
approving the stipulation and adjudicating the Indian water
rights or water rights for other federal reservation[s] as set
forth in the stipulation or declining to do so.” Section
(D)(6)(a) requires the court to approve a settlement if it
determines “by a preponderance of the evidence” that the water
rights “established in the settlement agreement . . . are no
more extensive” than could be proved at trial. This section
20
further provides that “[i]n making this determination, the court
may consider in addition to other evidence offered, the
statement of claimant filed by the Indian tribe or federal
agency and all supporting documentation.” Id.
¶36 Here, the adjudication court appropriately considered
the Statement of Claimant filed by the United States on behalf
of the Nation and the supporting assessment by ADWR regarding
the range of water rights the Nation could claim. As discussed
above, see supra ¶ 26, the range of water rights set forth in
these documents was greater than the rights granted under the
Nation’s settlement. Consequently, the adjudication court did
not err in determining that the settling parties met their
burden under the Special Order and that an evidentiary hearing
was unnecessary.
IV
¶37 For the forgoing reasons, we accept interlocutory
review and affirm the judgment and decree of the adjudication
court in its entirety.
_______________________________________
Michael D. Ryan, Justice
CONCURRING:
_______________________________________
Ruth V. McGregor, Chief Justice
21
_______________________________________
Rebecca White Berch, Vice Chief Justice
_______________________________________
Andrew D. Hurwitz, Justice
_______________________________________
A. John Pelander, III, Judge*
* Justice W. Scott Bales has recused himself from this case.
Pursuant to Article 6, Section 3 of the Arizona Constitution,
the Honorable A. John Pelander, III, Judge of the Arizona Court
of Appeals, Division Two, was designated to sit in this matter.
22