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THE ADJUDICATION THAT ATE

RIZONA WATER LAW

Joseph M. Feller

[O]ne does not “get out” of the Gila adjudication. It is a sort of

judicial black hole into which light, sound, lawyers, water—even

Judge Goodfarb—indeed, whole forests of paper, will disappear.

The only way out is out the other end.

INTRODUCTION

On April 26, 2004, the thirtieth anniversary of the initiation of the Gila

River water adjudication (“the Adjudication”),

the Salt River Project (“SRP”)

filed five motions with the clerk of the Maricopa County Superior Court. Each

styled “APPLICATION FOR ORDER TO SHOW CAUSE AND REQUEST FOR

INJUNCTION,” the motions requested that the court order five different

respondents to cease and desist from water uses that were allegedly depleting

water flows in Arizona’s Verde River.

According to the motions and an

accompanying Memorandum of Points and Authorities, these depletions of the

Verde River were depriving SRP and its members of water to which they are

entitled as senior appropriators on the Salt River, to which the Verde is tributary.

SRP’s attempts to restrain water uses in the Verde Valley actually go

back much farther than the initiation of the Adjudication in 1974. Over a century

* Professor of Law, Sandra Day O’Connor College of Law, Arizona State

University. This Article appears in Volume 49 Number 2 of the Arizona Law Review, which

collects papers originally presented at the Water Law and Policy Conference hosted by the

University of Arizona James E. Rogers College of Law in Tucson, Arizona, on October

6–7, 2006. The Author would like to thank Kathy Dolge, Byron Lewis, Mark McGinnis, Jan

Ronald, Connie Strittmatter, John Thorson, and John Weldon for their assistance.

1. Michael J. Brophy, The Gila Adjudication from the Perspective of Irrigation

Districts, in A

RIZONA SECTION, AMERICAN WATER RESOURCES ASSOCIATION, PROCEEDINGS

OF THE

SYMPOSIUM ON ADJUDICATION OF WATER RIGHTS: GILA RIVER WATERSHED,

ARIZONA 139, 144 (1988) [hereinafter 1988 SYMPOSIUM].

2. In re Gen. Adjudication of All Rights to Use Water in the Gila River Sys. &

Source, No. W-1, W-2, W-3, W-4 (Consolidated) (Ariz. Super. Ct. Maricopa County). For a

review of the first decade of the adjudication, see Mikel L. Moore & John B. Weldon, Jr.,

General Water Rights Adjudication in Arizona: Yesterday, Today, and Tomorrow, 27 ARIZ.

L. REV. 709 (1985).

3. See infra Part VI.

ARIZONA LAW REVIEW [VOL. 49:405

406

ago, in 1905, SRP and its members initiated an adjudication of water rights in the

Salt River and its tributaries, including the Verde, in Arizona’s Third District

Territorial Court. That adjudication resulted in the 1910 “Kent Decree”

determining water rights in the Salt River.

However, even though water users in

the Verde Valley were parties to that adjudication, the territorial court declined to

adjudicate Verde River water rights, finding that, at that time, water uses on the

Verde River were so minor that they did not significantly affect the flow of water

in the Salt. Over a half-century later, in 1966, in the face of expanding Verde

Valley water uses, SRP attempted to enlarge the Kent Decree to adjudicate Verde

water rights, but the federal district court (the successor to the territorial court)

held that the decree could not be reopened without joining all landowners and

water users in the Verde watershed.

SRP’s next attempt was the initiation of the

Gila River Adjudication in 1974.

With the filing of these motions, the Adjudication has come full circle. As

a comprehensive general stream adjudication, the proceeding was intended to

determine, once and for all, all claims to water rights on the Gila River and its

several tributaries, thus avoiding the need for ad hoc, piecemeal litigation to settle

individual disputes.

These motions, however, represent an implicit determination

by SRP that the Adjudication will not be completed in time to address the water

supply conflicts that it was supposed to resolve. Having given up hope for a timely

completion of the Adjudication, SRP has resorted, within the Adjudication, to the

type of piecemeal, two-party litigation that general stream adjudications are

designed to avoid.

The Adjudication is the largest and longest judicial proceeding in the

history of Arizona, and is among the most complex judicial proceedings in the

history of the United States. The Adjudication is supposed to determine the

quantities and relative priorities of all legal rights to the use of water from the Gila

River and its tributaries within Arizona. The Gila and its tributaries—including the

Salt, Verde, Agua Fria, Santa Cruz, and San Pedro Rivers—drain most of central

and southern Arizona, including the Phoenix and Tucson metropolitan areas. The

Gila watershed includes most of the state’s population, agriculture, and industry,

4. See infra Part II.A.

5. Hurley v. Abbott, 259 F. Supp. 669 (D. Ariz. 1966).

6. See In re Rights to the Use of the Gila River (Gila River I), 830 P.2d 442,

444 (Ariz. 1992). A similar, parallel proceeding is determining water rights in the Little

Colorado River and its tributaries. See In re Gen. Adjudication of All Rights to Use Water

in the Little Colo. River Sys. & Source, No. CV-6417 (Super. Ct. Apache County). For a

comprehensive account of the history and current status of general stream adjudications

across the west, see John E. Thorson et al., Dividing Western Waters: A Century of

Adjudicating Rivers and Streams, 8 U. DENV. WATER L. REV. 355 (2005) [hereinafter

Thorson et al., Dividing Western Waters I];

John E. Thorson et al., Dividing Western

Waters: A Century of Adjudicating Rivers and Streams, Part II, 9 U.

DENV. WATER L. REV.

299 (2006) [hereinafter Thorson et al., Dividing Western Waters II]. Mr. Thorson was

formerly the Special Master for the Gila River and Little Colorado adjudications.

2007] ARIZONA WATER ADJUDICATION

407

and the Gila and its tributaries provide the majority of the surface water supply for

the region.

The size and complexity of the Adjudication are commensurate with the

area that it covers. It began in 1974,

and its end is nowhere in sight.

The money

spent on the Adjudication as of the mid-1990s was estimated at one hundred

million dollars;

the total is certainly much higher by now. At the initiation of the

Adjudication, summonses were served by mail on over 849,000 recipients.

Approximately 24,000 of those recipients became parties to the Adjudication,

eventually filing a total of over 78,000 claims.

The parties include the United

States, the State of Arizona, Indian tribes, municipalities, public and private

utilities, agricultural irrigation districts, industrial corporations, and individual

farms, ranches, and other private water users. Although the Adjudication has yet to

result in a final judgment, it has already spawned one extensive revision of

Arizona’s water code, nine decisions of the Arizona Supreme Court

(one of

7. The other significant water sources for southern Arizona are pumped

groundwater and Colorado River water imported through the Central Arizona Project canal.

For an overview of Arizona’s water supply, see ARIZ. DEP’T OF WATER RES., SECURING

ARIZONA’S WATER FUTURE, available at http://www.azwater.gov/dwr/Content/Publications/

files/supplydemand.pdf (last visited Apr. 2, 2007).

8. The case was initially filed before the Arizona State Land Department, in

accordance with statutory procedures then in effect. It was transferred to the Maricopa

County Superior Court in 1979 when the applicable statutes were amended to require that

stream adjudications be brought in the Superior Courts. See United States v. Superior Court,

697 P.2d 658, 663–64 (Ariz. 1985).

9. In 1985, the Arizona Supreme Court observed, “The case has been pending

more than ten years and may well take another twenty for decision.” Id. at 662. It is now

evident that the court severely underestimated the time that the case would require. The

court’s was not the only such overly optimistic prediction. In 1988, a spokesman for the

Arizona Department of Water Resources predicted that the statutorily required

Comprehensive Report on the Adjudication would be completed in 1996 or 1997. See

Donald J. Gross, Status Report: General Adjudication of the Gila River System and Source,

in 1988 S

YMPOSIUM, supra note 1, at 63, 70. As of 2006, completion of the Comprehensive

Report is nowhere in sight.

10. See Thorson et al., Dividing Western Waters II, supra note 6, at 432.

11. In re Rights to the Use of the Gila River, 830 P.2d 442, 446 (Ariz. 1992).

12. Arizona Supreme Court, Overview of Arizona’s General Stream

Adjudications (2001), http://www.supreme.state.az.us/wm/bulletin/Overview.htm#2. This

website is an excellent source of information about many aspects of the Adjudication.

13. In re Gen. Adjudication of All Rights to Use Water in the Gila River Sys. &

Source, 127 P.3d 882 (Ariz. 2006); In re Gen. Adjudication of All Rights to Use Water in

the Gila River Sys. & Source (Gila River V), 35 P.3d 68 (Ariz. 2001); In re Gen.

Adjudication of All Rights to Use Water in the Gila River Sys. & Source (Gila River IV), 9

P.3d 1069 (Ariz. 2000); In re Gen. Adjudication of All Rights to Use Water in the Gila

River Sys. & Source (Gila River III), 989 P.2d 739 (Ariz. 1999); San Carlos Apache Tribe

v. Bolton, 977 P.2d 790 (Ariz. 1999); San Carlos Apache Tribe v. Superior Court, 972 P.2d

179 (Ariz. 1999); In re Gen. Adjudication of All Rights to Use Water in the Gila River Sys.

& Source (Gila River II), 857 P.2d 1236 (Ariz. 1993); In re Rights to the Use of the Gila

River (Gila River I), 830 P.2d 442 (Ariz. 1992); United States v. Superior Court, 697 P.2d

658 (Ariz. 1985).

ARIZONA LAW REVIEW [VOL. 49:405

408

which overturned much of the code revision

), and one decision of the United

States Supreme Court.

One additional issue arising from the Adjudication has

been accepted for review by the Arizona Supreme Court but has not yet been

decided.

Given the enormous resources that have been invested in the

Adjudication, and given the Adjudication’s apparent failure to achieve its

objectives in a timely manner, it seems appropriate at this time to assess where the

Adjudication has been and where it is going. Part I of this Article introduces the

Gila River and its tributaries and their role in Arizona’s water supply. Part II

summarizes key developments in Arizona water law that set the stage for the Gila

River Adjudication. Part III reviews the history of the Adjudication and the related

litigation and legislation that it has spawned. Part IV assesses the prospects for

completion of the Adjudication in the foreseeable future. Part V discusses the

negative effect the Adjudication has had, and is having, on enforcement of water

rights in Arizona. Part VI discusses the motions for interim relief filed by SRP in

2004. Part VII questions whether comprehensive general stream adjudications such

as the Gila River Adjudication are really an efficient means of determining water

rights, and Part VIII suggests an alternative mechanism, based on Colorado’s

system of “rolling” water adjudications, for determining and enforcing water rights

in Arizona. Finally, Part IX discusses the relationship between the proposed

alternative mechanism and the adjudication and settlement of Indian reserved

water rights claims.

I. THE GILA RIVER SYSTEM AND ITS ROLE IN ARIZONA’S WATER

SUPPLY

Except for the Colorado River, the Gila is by far the largest river in

Arizona, as measured both by its length and the volume of water that it carries.

The Gila originates in the mountains of southwestern New Mexico and enters

Arizona at its eastern border, approximately one hundred miles north of Mexico

and three hundred miles south of the Four Corners where Arizona, New Mexico,

Colorado, and Utah meet. It flows generally westward for over 300 miles across

southern Arizona, passing about 50 miles north of Tucson and skirting the

southern fringe of the Phoenix metropolitan area, to where it joins the Colorado

River where the latter forms the Arizona–California border at Yuma, in the

southwestern corner of the state.

14. See San Carlos Apache Tribe v. Superior Court, 972 P.2d 179.

15. Arizona v. San Carlos Apache Tribe of Arizona, 463 U.S. 545 (1983).

16. In December 1990, the Arizona Supreme Court granted petitions for

interlocutory review of six issues that had been decided by the Superior Court in the

adjudication. See In re Gen. Adjudication of All Rights to Use Water in the Gila River Sys.

& Source, No. WC-90-0001-IR (Ariz. Dec. 11, 1990) (orders concerning petitions for

interlocutory review), available at http://www.supreme.state.az.us/wm/bulletin/pdfs7-

01/order121190.pdf; Gila River III, 989 P.2d at 742 & n.2. Five of those issues were

decided in Gila River I through Gila River V. See supra note 13. The sixth issue—whether

claims of conflicting water use or interference with water rights should be resolved as part

of the adjudication—has yet to be decided by the court.

2007] ARIZONA WATER ADJUDICATION

409

The largest tributaries of the Gila are the Salt River and its tributary, the

Verde River. The Salt River drains much of mountainous eastern Arizona, flows

west through the Phoenix metropolitan area, and enters the Gila from the northeast

just west of Phoenix. The Verde River drains the mountains of central Arizona and

flows south into the Salt just east of Phoenix, about thirty miles upstream of the

Salt–Gila confluence.

Other significant tributaries are the San Pedro, which starts in Mexico and

flows north to enter the Gila about 50 miles east of Phoenix, the Santa Cruz, which

originates near Nogales on the Arizona–Mexico border and flows north through

Tucson to enter the Gila near Phoenix, and the Agua Fria, which enters the Gila

from the north just downstream of the Salt–Gila confluence.

The Gila River and its tributaries provide about twenty percent of the

water used in Arizona.

The other eighty percent comes mainly from the Colorado

River

and from pumped groundwater,

in approximately equal amounts. In the

Phoenix metropolitan area, however, the importance of one Gila tributary, the Salt,

is much greater than these statewide figures suggest. The Salt River and its

tributary the Verde River, through SRP, provide about forty percent of the water

used in the Phoenix area.

17. ARIZ. DEP’T OF WATER RES., supra note 7.

18. Arizona is entitled to 2.8 million acre-feet of Colorado River water annually.

Arizona v. California, 373 U.S. 546, 575–79 (1963). This entitlement is equal to about forty

percent of the state’s annual water use. Before the 1980s, Arizona made use of only about

half this amount, principally for irrigation of agricultural lands near the river. See, e.g.,

RIZONA DEP’T OF WATER RES., 1 ARIZONA WATER RESOURCES ASSESSMENT 6 (1994)

(showing average surface water diversion of 1,296,000 acre-feet of water from the Lower

Colorado River from 1971 to 1990). The construction of the Central Arizona Project in the

1980s and 1990s, however, allowed importation of water from the Colorado River to the

Phoenix and Tucson areas. Arizona now makes full use of its entitlement of Colorado River

water. See, e.g., Colorado River Water Users Association: Arizona State Profile,

http://www.crwua.org/az/crwua_az.htm (last visited Apr. 2, 2007); DALE PONTIUS,

COLORADO RIVER BASIN STUDY: FINAL REPORT 28 (1997) (report to the Western Water

Policy Review Advisory Commission).

19. Groundwater use in Arizona averaged over 4 million acre-feet between 1971

and 1990, A

RIZONA DEP’T OF WATER RES., supra note 18, at 6, but declined following the

construction of the Central Arizona Project. Groundwater use in Arizona in 2006 was 2.9

million acre-feet. ARIZ. DEP’T OF WATER RES., supra note 7, at 2.

20. See A

RIZ. DEP’T OF WATER RES., THIRD MANAGEMENT PLAN FOR PHOENIX

ACTIVE MANAGEMENT AREA 2000–2010, at 3-3 tbl.3-2, 11-10 tbl.11-6 (1999), available at

http://www.azwater.gov/dwr/Content/Publications/files/ThirdMgmtPlan/tmp_final/ (follow

“Phoenix AMA” hyperlink; then follow “Water Use Characteristics” hyperlink to Chapter 3

and “Water Budgets and Projections” hyperlink to Chapter 11) (showing that, out of

approximately 2.3 million acre-feet of water used annually in the Phoenix area, 0.9 million

acre-feet are from the Salt and Verde rivers).

ARIZONA LAW REVIEW [VOL. 49:405

410

II. B

EFORE THE FLOOD: KEY DEVELOPMENTS IN ARIZONA WATER

LAW PRIOR TO THE GILA RIVER ADJUDICATION

A. The First Adjudication: The Kent Decree

In 1905, one P.T. Hurley, a farmer in the Salt River Valley, filed a suit to

quiet title to water rights for irrigation of his farm. At this time, the United States

was also interested in the determination of water rights on the Salt River for two

reasons. First, such a determination would be necessary to guide the Bureau of

Reclamation in the distribution of stored water from the Salt River Project, which

was then under construction. Second, the United States, as trustee for Indian tribes

with reservations in the valley, was interested in a determination of the water rights

of those tribes.

The United States intervened in Hurley’s suit and filed a cross complaint,

naming as defendants all land owners in the area of the valley served by numerous

canals. These actions of the United States expanded Hurley’s quiet title suit to a

broad adjudication of water rights in much, but not all, of the Salt–Verde river

system. The suit culminated in 1910 in the “Kent Decree,”

named after the

territorial judge who rendered it. The decree determined priority dates from 1869

through 1909 for a total of approximately 151,000 acres of irrigated non-Indian

farmland

and allocated water for 2,500 acres of farmland on the Salt River Indian

Reservation, with a priority superior to that of all non-Indian farmers.

The decree established a duty of water of 0.3 miners’ inches, or 0.0075

cubic feet per second, continuous flow, for each irrigated acre,

plus extra

allowances for seepage and evaporation from canals.

Over the course of a year,

use of water at this rate would result in a total use of approximately 5.4 acre-feet of

water for each acre of farmland,

or over 800,000 acre-feet for the 153,500 acres,

exclusive of seepage and evaporation. When the allowances for seepage and

evaporation are added, the water allocated by the decree comes close to, or

exceeds, the million acre-foot median annual flow of the Salt and Verde Rivers.

The completion of the Salt River Project’s storage dams on the Salt and

Verde Rivers, beginning with Roosevelt Dam (the largest) in 1911, made

21. Hurley v. Abbott (Kent Decree), Arizona Territorial Court, No. 4564 (Mar.

1, 1910) (slip opinion reprinted and published by the Salt River Valley Water Users

Association). The Kent Decree is discussed in Grey v. United States, 21 Cl. Ct. 285 (1990),

aff’d, 935 F.2d 281 (Fed. Cir. 1991), cert. denied, 502 U.S. 1057 (1992), and in Taylor v.

Tempe Irrigating Canal Co., 193 P. 12 (Ariz. 1920).

22. Kent Decree, Arizona Territorial Court, No. 4564, at 78.

23. Id. at 19.

24. Id. at 11. The decree expresses the duty of water as 48 miners’ inches for

each quarter-section of land. Since one quarter-section is 160 acres, this is equal to 0.3

miners’ inches per acre. One miners’ inch is defined in the decree to be one fortieth (0.025)

of one cubic foot per second, id. at 21, so 0.3 miners’ inches equals 0.0075 cubic feet per

second.

25. Id. at 11–13. The allowances for seepage and evaporation vary from 6

percent to 36 percent, depending on the lengths of canals.

26. One cubic foot per second equals 724 acre-feet per year.

27. See supra note 20.

2007] ARIZONA WATER ADJUDICATION

411

additional irrigation water available in the Salt River Valley by allowing the

storage of flood waters in years of heavy precipitation. The Kent Decree

summarized the terms of an agreement between the United States and the Salt

River Valley Water Users Association regarding use of these stored waters,

but it

did not adjudicate rights to them. Between the issuance of the decree in 1910 and

the enactment of the state water code in 1919,

an additional 87,000 acres were

brought into cultivation.

The decree also appointed a Water Commissioner to “execute and carry

out” the provisions of the decree.

The Commissioner was authorized to enter

canals, dams, reservoirs, and other water facilities “whenever necessary to

ascertain existing conditions, or to control, supervise, or regulate the proper

delivery, carriage, or distribution of the water” and “to make such rules and

regulations as may be expedient and proper to ensure the delivery, carriage, and

distribution of the water” in accordance with the decree.

Actions of the

Commissioner were subject to review by the court on application of a party.

B. The 1919 Water Code

In 1912, Arizona became a state. Seven years later, in 1919, the Arizona

legislature enacted a water code,

which, in much-amended form, remains in

effect today.

The 1919 code established the office of the state Water Commissioner

and invested the Commissioner with “general control and supervision of the waters

of the State of Arizona and of the appropriation and of the distribution thereof,”

with the important exception of water distribution functions reserved to court-

appointed commissioners under existing decrees,

such as the Kent Decree. The

powers of the Water Commissioner were transferred in 1943 to the state Land

Commissioner,

in 1950 to the state Land Department,

and, finally, in 1980, to

the Department of Water Resources,

where they currently reside.

The code requires “any person . . . intending to acquire the right to the

beneficial use of any waters” to apply for a permit from the Department of Water

Resources.

The application may be denied if the proposed water use “conflicts

28. Kent Decree, Arizona Territorial Court, No. 4564, at 15.

29. See infra note 34 and accompanying text.

30. See Salt River Valley Water Users’ Ass’n v. Norviel, 241 P. 503, 504 (Ariz.

1925).

31. Kent Decree, Arizona Territorial Court, No. 4564, at 17.

32. Id.

33. Id. at 17–18.

34. 1919 Ariz. Sess. Laws, ch. 164.

35. See A

RIZ. REV. STAT. ANN. §§ 45-151 to -175, 45-251 to -260 (2006).

36. 1919 Ariz. Sess. Laws, ch. 164, § 2.

37. 1943 Ariz. Sess. Laws, ch. 28, § 5.

38. 1950 Ariz. Laws 1st Spec. Sess., ch. 30, § 1.

39. 1980 Ariz. Laws 4th Spec. Sess., ch. 1, § 35.

40. See A

RIZ. REV. STAT. ANN. § 45-103(B) (2006).

41. See 1919 Ariz. Sess. Laws, ch. 164, §§ 5–6 (codified as amended at A

RIZ.

REV. STAT. ANN. § 45-152 (2006)).

ARIZONA LAW REVIEW [VOL. 49:405

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with vested rights, is a menace to public safety, or is against the interests and

welfare of the public.”

If the application is denied, “the applicant shall take no

steps toward construction of the proposed work or diversion of the water.”

In order to perfect a water right, the permittee must begin construction of

the facilities necessary to put the water to use within two years of the granting of

the permit, and construction must be completed within a time specified in the

permit, but not to exceed five years.

The Department may extend the time

beyond five years “if the magnitude, physical difficulties, and cost of the work

justify extension.”

Upon putting water to beneficial use, a permittee may apply to

the Department for a certificate of water right, which must be issued “[w]hen it

appears to the satisfaction of the director [of the Department] that an appropriation

has been perfected and a beneficial use completed.”

Certificates issued pursuant to the 1919 code did not represent judicial

determinations of water rights, or even the results of contested administrative

proceedings.

The code, however, also established a procedure for resolution of

conflicting water rights claims. In its amended form, before its repeal and

replacement in 1979 by the current provisions for general stream adjudications,

the code provided as follows:

The [state land] department may, and upon a petition signed by one

or more water users upon a stream or water supply requesting the

determination of the relative rights of the various claimants to the

waters of that stream or supply shall, if the facts and conditions

justify, determine the rights of the various claimants.

Where the department initiated a proceeding for such a determination on

a stream already covered by an existing court decree, the code required the

department to accept the rights and priority dates determined in that decree, and

42. ARIZ. REV. STAT. ANN. § 45-153.

43. Id. § 45-158.

44. A

RIZ. REV. STAT. ANN. § 45-160. Cities and towns appropriating water for

municipal use are exempt from these time limits. Id.

45. Id.

46. A

RIZ. REV. STAT. ANN. § 45-162(A).

47. See Beach v. Superior Court of Apache County, 173 P.2d 79, 82–83 (Ariz.

1946) (noting that in granting or denying an application for a permit, the Water

Commissioner [now the Department of Water Resources] does not determine the relative

rights of the permittee and other appropriators; other appropriators have no right of appeal

from the granting of a permit); Salt River Valley Water Users’ Ass’n v. Norviel, 242 P.

1013, 1014 (Ariz. 1926) (noting that the Water Commissioner, in granting or denying an

application for a permit, has “no jurisdiction to settle and determine the relative rights” of

competing water users); cf. Rettkowski v. Dep’t of Ecology, 858 P.2d 232, 236–39 (Wash.

1993) (distinguishing the “tentative determinations” made in permit issuance from the final

determinations made in an adjudication of water rights).

48. See 1979 Ariz. Sess. Laws, ch. 139, § 39 (codified as amended at A

RIZ. REV.

STAT. ANN. §§ 45-251 to -259 (2006)); see infra Part III.B.

49. A

RIZ. REV. STAT. ANN. § 45-231(A) (1956) (codifying 1919 Ariz. Sess.

Laws, ch. 164, § 16, as amended).

2007] ARIZONA WATER ADJUDICATION

413

specifically provided that the holders of such rights need not appear in the

proceeding except to disprove abandonment “or other loss” of their rights.

When such a proceeding was initiated, the code required hydrological and

water use investigations by the department,

notice by mail of the proceeding to

all claimants “so far as the claimants can reasonably be ascertained” as well as

published notice in newspapers of general circulation,

a statement of claim to be

filed by each claimant on a prescribed form,

opportunity for each claimant to

contest the claims of others,

and hearings on the contests.

After the completion

of hearings, the department was to prepare findings of fact and an order

“determining and establishing the several rights of the claimants to the waters of

the stream or supply.”

The code then provided for the filing of the department’s

order with the superior court of the appropriate county, opportunity for the filing of

exceptions, hearings on the exceptions, and a final judgment of the court,

affirming, modifying, or remanding the department’s order.

The code provided that the “[t]he determination of the department as

confirmed or modified by the judgment of the court shall be conclusive as to all

prior rights and the rights of all existing claimants upon the stream or body of

water embraced in the determination.”

Except for claimants exempted from

participation by virtue of prior decrees and claimants without prior actual notice

who intervened during a one-year grace period after the filing of the department’s

order, a claimant who failed to appear in the proceeding “shall be barred and

estopped from subsequently asserting any right theretofore acquired upon the

stream or other body of water embraced in the proceedings, and shall forfeit all

rights to the use of water theretofore claimed by him.”

The hybrid administrative–judicial procedure for adjudicating water

rights set out in the 1919 code was not exclusive. The drafters apparently

contemplated that actions for the determination of water rights might also be

brought directly to the courts: Under the code, a court hearing such an action

“may” transfer the action to the Land Department.

As it turned out, parties to water rights disputes generally ignored the

code’s lengthy procedure. The only water rights adjudication completed pursuant

to the procedure was on a small stream in Cochise County in the far southeastern

corner of the state.

Most water rights disputes were taken directly to the state’s

50. Id. § 45-231(B).

51. Id. § 45-233.

52. Id. § 45-234.

53. Id. § 45-235.

54. Id. § 45-237(A).

55. Id. § 45-237(B)–(D).

56. Id. § 45-238(A).

57. Id. §§ 45-238(B), 45-239.

58. Id. § 45-240(B).

59. Id. § 45-243.

60. Id. § 45-231(A).

61. See Stuart v. Norviel, 226 P. 908 (Ariz. 1924).

ARIZONA LAW REVIEW [VOL. 49:405

414

courts in the form of actions to quiet title to water rights,

to enjoin water uses that

allegedly infringed on existing rights, to cancel appropriation permits that

allegedly conflicted with existing rights,

or to enjoin the future issuance of such

permits.

The courts did not hesitate to make such determinations of water rights

as necessary to resolve the particular disputes before them.

C. The Globe Equity Decree

Arizona’s most significant water rights adjudication completed since

statehood was not in state court but in federal court. The so-called “Globe Equity

Decree” of 1935

determined water rights on the Gila River above its confluence

with the Salt River.

Like the Kent Decree on the Salt River, the Globe Equity Decree arose

from litigation brought by the United States to determine Indian and non-Indian

water rights in anticipation of the completion of a federal water storage project,

this time Coolidge Dam, and San Carlos Reservoir behind it, on the Gila. By the

1920s, irrigators in the upper valley of the Gila River had depleted the flow of the

river to the point that insufficient water was left downstream for irrigation on the

San Carlos Apache and Gila River [Pima and Maricopa] Indian Reservations and

for senior irrigators in both the Florence–Casa Grande Irrigation Project (“FCIP”)

and the San Carlos Irrigation Project (“SCIP”).

Coolidge Dam on the San Carlos Apache Indian Reservation, completed

in 1928, was designed to store floodwaters that could subsequently be released to

satisfy Indian and senior non-Indian rights downstream, while reducing the

necessity for restricting non-Indian irrigation upstream. Before completion of the

dam, the United States in 1925 brought suit on behalf of the tribes and of irrigators

in FCIP and SCIP against the upstream irrigators to adjudicate the competing

Indian and non-Indian rights so that, when the dam was completed, it could be

operated in accordance with those rights. The suit was brought in the Globe

division of the U.S. District Court for the District of Arizona and the case was

denominated “Globe Equity No. 59.” The parties reached a settlement and the

stipulated decree was issued in 1935. The decree incorporated a duty of water of

six acre-feet per acre of irrigated land and, based on that duty, awarded 210,000

acre-feet annually to the Gila River Reservation with an “immemorial” priority

date,

6,000 acre-feet to the San Carlos Apache Reservation with a priority date of

62. See, e.g., Salt River Valley Water Users’ Ass’n v. Norviel, 241 P. 503 (Ariz.

1925).

63. See, e.g., id.

64. See St. Johns Irrigation & Ditch Co. v. Ariz. Water Comm’n, 621 P.2d 37

(Ariz. 1980).

65. See, e.g., Salt River Valley, 241 P. 503, 507 (Ariz. 1925) (holding that

complaint requesting cancellation of defendants’ appropriation permit “is sufficient in our

judgment upon which to base an adjudication of the rights of appropriators in and to the

waters of the Verde River as between [the plaintiff and the defendant]”).

66. United States v. Gila Valley Irrigation Dist., Globe Equity No. 59 (D. Ariz.

June 29, 1935).

67. Id. at 86.

2007] ARIZONA WATER ADJUDICATION

415

1846,

162,000 acre-feet to private lands in FCIP and SCIP with a priority date of

1916,

and an additional 231,276 acre-feet to FCIP and SCIP lands with a priority

date of 1924.

Upper valley irrigators in Arizona were awarded a total of

approximately 225,000 acre-feet of water annually with priority dates ranging

from 1872 to 1920

and irrigators farther upstream in New Mexico were awarded

rights totaling approximately 16,000 acre-feet with priorities ranging from 1874 to

1929.

Because all rights in the upper valley were junior to the “immemorial”

right of the Gila River Reservation to 210,000 acre-feet, and many of them were

also junior to the 1916 rights of non-Indian FCIP and SCIP lands, enforcement of

the decree without construction of Coolidge Dam would have shut down much of

the upper valley irrigation in dry years. However, the dam was completed in 1928,

and the decree authorized the United States, under a 1924 priority date, to store

excess water in wet times behind the dam, up to the 1,285,000 acre-foot capacity

of the reservoir.

Because the upper valley irrigators are upstream of the reservoir,

water stored there could be of no direct use to them. But the stipulated terms of the

decree effectively transferred much of the benefit of the reservoir to the upper

valley by providing that, when water was stored in the reservoir, an equivalent

amount of water could be diverted from the river by upper valley diverters despite

the senior rights below the reservoir.

In effect, the decree substituted stored water

from the reservoir for the natural flow to which the downstream rightholders were

otherwise entitled, allowing upper valley irrigators to divert water to which they

otherwise would not have been entitled. In consideration for this benefit, the

decree limited the upper valley irrigators’ consumptive water use to a total of

120,000 acre-feet in any given year.

Despite the construction of Coolidge Dam and the attempt to use the

storage capability of San Carlos Reservoir to satisfy all parties, the flow of the Gila

River is nowhere near sufficient to fulfill all the rights adjudicated in the Globe

Equity Decree. The average annual diversion for the Gila River Reservation, FCIP,

and SCIP at the Ashurst-Hayden Diversion Dam is 230,000 acre-feet, or around

one third of the total of 672,000 acre-feet that the decree awarded to these lower

valley users by the decree. San Carlos Reservoir is rarely full, usually less than

half-full, and sometimes completely empty.

68. Id.

69. See id. The figure of 162,000 acre-feet is derived by subtracting the 210,000

acre-feet awarded to the Gila River Indian Reservation from 372,000 acre-feet authorized to

be diverted at the Ashurst-Hayden and Sacaton diversion dams. The subtraction must be

performed because the diversion rights listed in the decree for the Ashurst-Hayden and

Sacaton dams are cumulative. See id. at 105.

70. See id. at 98. The figure is derived by subtracting the 372,000 acre-feet with

earlier priority dates from the total of 603,276 acre-feet.

71. See id. at 14–72. This figure is the total of all decreed diversions in Graham

and Greenlee counties, which are in the upper valley, above San Carlos Reservoir.

72. See id. This figure is the total of all decreed diversions in Hidalgo County,

which is in New Mexico.

73. Id. at 105.

74. Id. at 106.

75. Id. at 107.

ARIZONA LAW REVIEW [VOL. 49:405

416

D. The Water Rights Registration Act

The permit/certificate system established by the 1919 water code provides

records of water rights established subsequent to its enactment. Until the 1970s,

there was no comparable set of records for pre-1919 water rights. In 1974, the

legislature passed the Water Rights Registration Act.

That Act required any

claimant of a right to use surface water to file a statement of claim unless the claim

was already recorded in the form of a permit or certificate, a court decree, or a

contract with the United States.

Under the original form of the statute, failure to

file the required statement of claim by June 30, 1979,

would have resulted in loss

of the claimed water right.

However, the statute was amended in 1995 to replace

the single, statewide deadline with watershed-specific deadlines tied to the

sequence of proceedings in general stream adjudications.

E. The Jumble of Arizona Water Rights

As a result of this history, surface water rights in Arizona vary in the way

they are recorded and whether they have administrative or judicial imprimatur, or

both, or neither. In general, pre-1919 rights outside the scope of the Kent, Globe

Equity, and other decrees have never been subject to administrative or judicial

scrutiny. They should have been registered by 1979 pursuant to the 1974 Water

Rights Registration Act, but the legislature’s decision to replace the 1979 deadline

with watershed-specific deadlines dependent on the procedures in general stream

adjudications means that, in most of the state, as of this writing, it is still not too

late to file claims of pre-1919 rights.

Water rights established by post-1919 appropriations should be

documented by permits and certificates issued by the Arizona Department of

Water Resources or by its predecessor, the Arizona Water Commission. However,

because application for a certificate of water right is not mandatory, some of these

appropriations may be completed but not certificated. Where there is a permit but

no certificate, there is no way to determine from the Department’s records whether

the appropriation was ever completed. Moreover, although the water code has,

since 1919, forbidden appropriation of water without a permit,

there is some

indication of legislative intent to allow subsequent recognition of permitless

appropriations, even though undertaken in violation of the code, as valid water

rights.

Further, even certificated water rights may be challenged in subsequent

76. 1974 Ariz. Sess. Laws, ch. 122 (codified as amended at ARIZ. REV. STAT.

ANN. §§ 45-181 to 45-190 (2006)).

77. 1974 Ariz. Sess. Laws, ch. 122, § 2 (codified as amended at A

RIZ. REV.

STAT. ANN. § 45-182). Water rights on the mainstem of the Colorado River are exempted

from the filing requirement. A

RIZ. REV. STAT. ANN. § 45-182(B)(3).

78. See 1974 Ariz. Sess. Laws, ch. 122, § 2.

79. A

RIZ. REV. STAT. ANN. § 45-184.

80. See id. § 45-182(A). For a discussion of general stream adjudications under

current Arizona law, see infra Part III.B.

81. See A

RIZ. REV. STAT. ANN. § 45-158.

82. See, e.g., A

RIZ. REV. STAT. ANN. § 45-188 (referring to water rights

established by post-1919 appropriations and evidenced by certificates, decrees, “or previous

possession or continued beneficial use”). But see Tattersfield v. Putnam, 41 P.2d 228, 235–

2007] ARIZONA WATER ADJUDICATION

417

judicial proceedings to adjudicate water rights,

and are also subject to forfeiture

and abandonment. Finally, water rights adjudicated in decrees such as the Kent and

Globe Equity decrees would appear to be the most secure, but even those decrees

are not binding on persons who were not parties to the cases that generated them.

III. THE GILA RIVER ADJUDICATION

A. Initiation of the Adjudication

The proceeding now known as the Gila River Adjudication was initiated

in 1974 by the Salt River Valley Water Users Association (“SRVWUA”), the

private association of the users of water from the Salt River Project. Seeking to

protect its water supply from potential encroachment by growing communities

higher in the watershed, SRVWUA filed a petition with the State Land Department

for adjudication of water rights in the Salt River above Granite Reef Dam, which is

the point where SRP diverts water for municipal, industrial, and agricultural use in

the Phoenix metropolitan area.

In 1976, SRVWUA filed a similar petition

requesting an adjudication for the Verde River, the largest tributary of the Salt,

which enters the Salt just above Granite Reef.

In 1978, Phelps Dodge

Corporation filed petitions for adjudications of water rights in portions of the

mainstem of the Gila River and ASARCO Corporation petitioned for adjudication

of water rights in another Gila tributary, the San Pedro.

B. The 1979 Code Revisions

In 1979, the Arizona legislature repealed the statutory provisions for

adjudication of water rights by the State Land Department and replaced them with

provisions for general stream adjudications in the state trial courts.

Under the

new provisions:

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.

36 (Ariz. 1935) (explaining that no water right can be acquired without compliance with the

code).

83. See, e.g., Salt River Valley Water Users’ Ass’n v. Norviel, 241 P. 503 (Ariz.

1925).

84. See, e.g., California v. United States, 235 F.2d 647, 663 (9th Cir. 1956).

85. See United States v. Superior Court, 697 P.2d 658, 663–64 (Ariz. 1985).

86. See Arizona Supreme Court, supra note 12.

87. Id.

88. See 1979 Ariz. Sess. Laws, ch. 139, § 39 (codified as amended at A

RIZ. REV.

STAT. ANN. §§ 45-251 to 45-259 (2006)).

89. A

RIZ. REV. STAT. ANN. § 45-251.

ARIZONA LAW REVIEW [VOL. 49:405

418

The petition must be filed “in the superior court in the county in which

the largest number of potential claimants resides.”

Once a general adjudication is

initiated, the code assigns to the Director of the Department of Water Resources

(“ADWR”) the responsibility to effect service “on all known potential

claimants,”

including, “as far as reasonably possible the current record owners of

all real property within the geographical scope of the adjudication.”

Service on

“all unknown potential claimants” is effected by repeated publication in

newspapers “in each of the counties within which interests in and to the use of

water may be affected by the general adjudication,”

and the ADWR is also

required to “publicize the general adjudication through the electronic media and in

general circulation newspapers.”

Each claimant of a water right in the river system under adjudication must

file a “statement of claimant” on a prescribed form

that includes, among other

things, the quantity of water claimed, the purpose of the claimed use, the point of

diversion, the place of use, and the date of initiation of the right.

ADWR is

directed to investigate each claim asserted

and to prepare a report, known as a

hydrographic survey report (“HSR”), containing ADWR’s proposed findings

regarding the validity and attributes of all claimed water rights in the river

system.

Claimants are then given an opportunity to file objections to the HSR.

A court-appointed master

100

then holds hearings on the objections and prepares a

report for the court with recommended decisions.

101

Claimants may then file

objections to the master’s report with the court, and the court then makes final

determinations of water rights.

102

Pursuant to these new provisions, the petitions pending before the State

Land Department for adjudications of the Salt, Verde, and Gila Rivers were

transferred to the Maricopa County Superior Court and the San Pedro petition was

transferred to the Cochise County Superior Court.

103

In November 1981, the

Arizona Supreme Court consolidated the various petitions into a single case in the

Maricopa County Superior Court and assigned the case to Judge Stanley

Goodfarb.

104

Motions granted before and after the consolidation expanded the case

90. Id. § 45-252.

91. Id. § 454-253(A)(2).

92. Id. § 45-256(A)(1).

93. Id. § 45-253(B).

94. Id. § 45-253(C).

95. Id. § 45-253(A)(2), 45-254(A).

96. Id. § 45-254(C).

97. Id. § 45-256(A).

98. Id. § 45-256(B).

99. Id.

100. See id. § 45-255.

101. Id. § 45-257(A); see also A

RIZ. R. CIV. P. 53 (relating to masters).

102. A

RIZ. REV. STAT. ANN. § 45-257(A), (B).

103. See Arizona Supreme Court, supra note 12.

104. See id.; United States v. Superior Court, 697 P.2d 658, 664 (Ariz. 1985).

2007] ARIZONA WATER ADJUDICATION

419

to encompass all the watershed of the Gila River except for the small portion in

New Mexico.

105

C. Jurisdictional Challenges

The next four years of the Adjudication were occupied with challenges,

both external and internal, to the court’s jurisdiction to resolve Indian tribes’

reserved water rights claims. Externally, some Arizona Indian tribes filed actions

in federal court seeking removal of the Adjudication to federal court, an injunction

against adjudication of Indian water claims by the state court, and adjudication of

the Indian claims in the federal court. These actions resulted in a 1983 decision by

the United States Supreme Court that the federal and state courts each had

jurisdiction to adjudicate the Indian claims, but that the federal actions should be

stayed or dismissed in deference to the ongoing general adjudication in the state

court.

106

Internally, the United States and the San Carlos and Tonto Apache Tribes

moved to dismiss the Adjudication on the grounds that a provision of the Arizona

Constitution had the effect of disclaiming state court jurisdiction over Indian water

rights. In 1985, the Arizona Supreme Court, in a special action for interlocutory

review, rejected this jurisdictional challenge and thus cleared the way for the

Adjudication to proceed.

107

D. Interlocutory Appeals

The next major step in the Adjudication was a lengthy pre-trial order

issued by Judge Goodfarb in 1986.

108

This order, among other things, established

procedures for filing and service of pleadings and identified a series of preliminary

issues that needed to be resolved before the court could proceed to adjudicate

individual claims.

In 1988, Judge Goodfarb issued a series of orders addressing some of

those issues. In an order issued in September of 1988, Judge Goodfarb established

a test (the “50%/90 day” test) to determine which groundwater wells are

sufficiently close to streams that they should be deemed to be pumping

appropriable surface water and therefore included in the Adjudication.

109

Other

orders issued by Judge Goodfarb in 1988 concluded that federal and Indian

105. See In re Rights to the Use of the Gila River, 830 P.2d 442, 445 & n.1 (Ariz.

1992); Arizona Supreme Court, supra note 12.

106. Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1983).

107. Superior Court, 697 P.2d 658.

108. In re Gen. Adjudication of All Rights to Use Water in the Gila River Sys. &

Source, Nos. W-1, W-2, W-3, W-4 (Consolidated) (Ariz. Super. Ct. Maricopa County May

30, 1986) (Pre-Trial Order No. 1).

109. See In re Gen. Adjudication of All Rights to Use Water in the Gila River

Sys. & Source (Gila River II), 857 P.2d 1236 (Ariz. 1993) (setting aside the “50%/90 day”

test). Under the 50%/90 day test, a well would be deemed to be pumping appropriable

surface water (in the form of “subflow”) if, during a 90-day period of well operation, the

flow of a surface stream is depleted by more than 50% of the volume of water pumped. See

id. at 1239.

ARIZONA LAW REVIEW [VOL. 49:405

420

reserved water rights may extend to groundwater as well as surface water;

110

that

the federal government and Indian tribes should be protected against impairment

of their reserved rights by groundwater pumping even where appropriators under

state law would not be similarly protected;

111

and that the Indian reserved water

rights on all Arizona Indian reservations should be quantified through the

“practicably irrigable acreage” (“PIA”) standard.

112

In December 1990, the Arizona Supreme Court granted interlocutory

review of six issues generated by Judge Goodfarb’s orders.

113

In March 1992, the

court issued its first decision on those issues, affirming that Judge Goodfarb’s

procedures for filing and service of pleadings comported with the due process

clauses of the Arizona and federal constitutions.

114

In July 1993, the court decided

the second issue by rejecting Judge Goodfarb’s “50%/90 day” test for

distinguishing appropriable surface water from non-appropriable groundwater and

ordered Judge Goodfarb to develop a new test more consistent with historic

Arizona water law.

115

In 1999, the court affirmed Judge Goodfarb’s decisions

recognizing potential Indian reserved rights to groundwater and providing reserved

rights with greater protection against infringement by groundwater pumpers than

that provided by state law.

116

In 2000, the court affirmed Judge Goodfarb’s new

test for the surface water/groundwater distinction, developed on remand from the

court’s 1993 decision.

117

Finally, in 2001, the court rejected the PIA standard for

quantification of Indian reserved water rights

118

and created its own multi-factor

standard, a “fact-intensive inquiry”

119

that takes into account a tribe’s land use

plans, history, culture, economic base, past water use, present and projected future

population, and its reservation’s geography, topography, natural resources, and

groundwater availability.

120

110. See In re Gen. Adjudication of All Rights to Use Water in the Gila River

System and Source (Gila River III), 989 P.2d 739, 745–49 (Ariz. 1999).

111. See id. at 749–50.

112. See In re Gen. Adjudication of All Rights to Use Water in the Gila River Sys.

& Source (Gila River V), 35 P.3d 68, 71 (Ariz. 2001).

113. See supra note 16.

114. In re Rights to the Use of the Gila River (Gila River I), 830 P.2d 442 (Ariz.

1992).

115. In re Gen. Adjudication of All Rights to Use Water in the Gila River Sys. &

Source (Gila River II), 857 P.2d 1236 (Ariz. 1993). For further discussion of the surface

water/groundwater distinction, see infra Part IV.A.

116. Gila River III, 989 P.2d 739.

117. In re Gen. Adjudication of All Rights to Use Water in the Gila River Sys. &

Source (Gila River IV), 9 P.3d 1069 (Ariz. 2000).

118. In re Gen. Adjudication of All Rights to Use Water in the Gila River Sys. &

Source (Gila River V), 35 P.3d 68, 77–79 (Ariz. 2001).

119. Id. at 79.

120. Id. at 79–81. The court’s decision is arguably inconsistent with the U.S.

Supreme Court’s decision in Arizona v. California, 373 U.S. 546, 600–01 (1963), which

eschewed any attempt to determine the “reasonably foreseeable needs” of Indian

reservations along the lower Colorado River and concluded that “the only feasible and fair

way by which reserved water for the reservations can be measured is irrigable acreage.”

2007] ARIZONA WATER ADJUDICATION

421

E. Up Silver Creek Without a Paddle

While the Gila River Adjudication was stalled pending the Arizona

Supreme Court’s resolution of interlocutory issues, a parallel adjudication of the

Little Colorado River in Apache County Superior Court

121

was moving forward.

The first sub-watershed to be addressed by the Little Colorado adjudication was

that of Silver Creek, a tributary that arises along the Mogollon Rim near Show

Low, Arizona and flows north to join the Little Colorado near Holbrook, Arizona.

The attempt to adjudicate water rights in the Silver Creek drainage would

demonstrate the formidable nature of the task facing both the Gila and the Little

Colorado adjudications and would lead to a major revision of the state’s water

code and a critical decision of the Arizona Supreme Court.

The HSR for the Silver Creek watershed, the first such report to be

prepared in either adjudication, was filed with the Apache County court on

November 29, 1990.

122

In the ensuing 180-day objection period, 3,456 objections

to the report were filed.

123

The objections raised virtually every imaginable

question about the scope, nature, methodology, and quality of ADWR’s work in

preparing the HSR and about the validity, water sources, priority dates, points of

diversion, places of use, and quantities of water associated with the water rights

found in the HSR.

124

The objections to the Silver Creek HSR created a panic among farmers

and ranchers whose water rights were at stake and who faced the daunting prospect

of defending those rights against the thousands of objections that had been filed.

125

They sought, and obtained, relief from the legislature in the form of a rewriting of

much of the surface water code.

126

The amendments to the water code were

ostensibly designed to speed and simplify the Gila and Little Colorado

adjudications, but they generally did so by favoring claimants of appropriative

water rights over those who would challenge their claims. The amendments to the

code included the following:

• exemption of pre-1919 water rights from forfeiture for non-use;

127

121. See supra note 6.

122. See Comprehensive Case Management Order No. 1 Regarding Objections

Filed to the Silver Creek Hydrographic Survey Report at 3, In re Gen. Adjudication of All

Rights to Use Water in the Little Colo. River Sys. & Source, No. CV-6417 (Super. Ct.

Apache County Dec. 2, 1991).

123. Id.

124. See id. at 4–9; Notice of Revised Statement of Issues for Special

Consolidated Cases at 4–11, Nos. 6417-033-9001 to -9006, In re Gen. Adjudication of All

Rights to Use Water in the Little Colo. River Sys. & Source, No. CV-6417 (Super. Ct.

Apache County Feb. 6, 1992).

125. For an interesting discussion of the Silver Creek experience, see Opening

Brief of Salt River Project and City of Tempe at 6–15, San Carlos Apache Tribe v. Superior

Court, 972 P.2d 179 (Ariz. 1999) (No. CV-95-0161-SA).

126. See 1995 Ariz. Sess. Laws, ch. 9. Many of the provisions of the 1995 code

amendments were struck down by the Arizona Supreme Court in 1999, San Carlos Apache

Tribe, 972 P.2d 179, but, as of this writing, they remain on the books.

127. A

RIZ. REV. STAT. ANN. § 45-141(C) (2006).

ARIZONA LAW REVIEW [VOL. 49:405

422

• a stipulation that failure to obtain approval for a change in use does not

result in forfeiture, abandonment, or loss of priority of a water right;

128

• recognition of water rights established by adverse possession between

1919 and 1974;

129

• exemption of water rights within irrigation districts from forfeiture and

abandonment;

130

• a “de minimis” provision for summary adjudication of stockponds

smaller than fifteen acre-feet and domestic and small business uses of less

than three acre-feet;

131

• a provision that appropriative rights would be measured by the capacity

of water diversion facilities rather than by the quantity of water actually

diverted and used;

132

• a requirement that adjudication courts accept, without reviewing,

settlement agreements made by claimants;

133

• a requirement that adjudication courts accept information in prior filings

as true unless found by ADWR to be “clearly erroneous”;

134

• a prohibition on the consideration of the public trust doctrine by

adjudication courts.

135

These and other provisions of the amended code reduced the

opportunities to challenge appropriative claims and thus placed claimants of

reserved rights—Indian tribes and the United States—at a relative disadvantage. In

a special action, the United States and several tribes challenged numerous

provisions of the amendments on the grounds that they violated the due process

clause or the separation of powers clause of the Arizona Constitution. The Arizona

Supreme Court struck down many of the amendments—including all of those

listed above—while upholding others.

136

With the legislature’s rewriting of the

water code largely overturned, the problem revealed by the Silver Creek

128. Id. § 45-156(E).

129. Id. § 45-187. The applicability of adverse possession principles to water

rights during this period had previously been in doubt. See San Carlos Apache Tribe, 972

P.2d at 190–91.

130. ARIZ. REV. STAT. ANN. § 45-188(C).

131. Id. § 45-258.

132. Id. § 45-256(A)(7). As a trial judge and the Arizona Supreme Court noted,

this provision would have created water rights far in excess of actual beneficial use. See San

Carlos Apache Tribe, 972 P.2d at 197.

133. A

RIZ. REV. STAT. ANN. § 45-257(C).

134. Id. § 45-261(A)(2).

135. Id. § 45-263(B). In other states, particularly California, the public trust

doctrine has been held to be a limitation on private water diversions that deplete navigable

waterways. See Nat’l Audubon Soc’y v. Superior Court (Mono Lake Case), 658 P.2d 709

(Cal. 1983); Michael C. Blumm & Thea Schwartz, Mono Lake and the Evolving Public

Trust in Western Water, 37 ARIZ. L. REV. 701 (1995).

136. San Carlos Apache Tribe, 972 P.2d 179.

2007] ARIZONA WATER ADJUDICATION

423

experience, namely, the unmanageable nature of an adjudicatory process with so

many potential objectors and objections, remains unsolved.

IV. THE DIM PROSPECT FOR COMPLETION OF THE

ADJUDICATIONS IN THE FORESEEABLE FUTURE

It is unlikely that either the Gila River Adjudication or the Little Colorado

Adjudication will be completed in the foreseeable future. The reasons for this dim

prospect are twofold: First, the adjudications are currently mired in two threshold

issues that will take many years to resolve. Second, even (if and) when these

threshold issues are finally resolved, the adjudications will simply be back in the

position they were in during the early 1990s, when the Silver Creek fiasco

demonstrated the difficulty and complexity of the adjudications’ basic task of

determining individual appropriative water rights in the face of thousands of

potential objectors to each right. Because the legislature’s attempt to circumvent

such complexity and difficulty through the enactment of statutory presumptions

and exemptions was largely overturned by the courts, there is no reason to assume

that a resumed effort to adjudicate rights will go any more smoothly in the future

than it did a decade and a half ago.

A. The “Subflow” Conundrum

The first unresolved threshold issue in the two adjudications is the

fundamental question of which water users are included in the adjudications and

which are not. Under the water code, an adjudication shall determine water rights

in a “river system and source,”

137

which is defined to mean “all water appropriable

under § 45-141” as well as “all water subject to claims based upon federal law.”

138

Under section 45-141 of the Arizona Revised Statutes, water “flowing in streams,

canyons, ravines or other natural channels, or in definite underground channels” is

appropriable. Thus, the rights of a person pumping groundwater are to be

determined in an adjudication if, and only if, she is pumping from a “definite

underground channel.” Water flowing in a “definite underground channel” is also

known as “subflow,”

139

a term introduced into Arizona law in the 1931 case of

Maricopa County Municipal Water Conservation District Number 1 v. Southwest

Cotton Co.

140

The court in Southwest Cotton defined subflow as “those waters

which slowly find their way through the sand and gravel constituting the bed of the

stream, or the lands under or immediately adjacent to the stream, and are

themselves a part of the surface stream.”

141

137. ARIZ. REV. STAT. ANN. § 45-252.

138. Id. § 45-251(7).

139. See In re Gen. Adjudication of All Rights to Use Water in the Gila River

Sys. & Source (Gila River II), 857 P.2d 1236 (Ariz. 1993).

140. 4 P.2d 369 (Ariz. 1931).

141. Id. at 380. For discussions of the subflow concept, and its lack of connection

to hydrogeologic reality, see Robert Jerome Glennon & Thomas Maddock, III, In Search of

Subflow: Arizona’s Futile Effort to Separate Groundwater from Surface Water, 36 A

RIZ. L.

REV. 567 (1994); John D. Leshy & James Belanger, Arizona Law Where Ground and

Surface Water Meet, 20 A

RIZ. ST. L.J. 657 (1988).

ARIZONA LAW REVIEW [VOL. 49:405

424

The Gila River adjudication court, the Arizona Supreme Court, and the

Arizona Department of Water Resources (“ADWR”) have spent nearly twenty

years attempting to resolve exactly whose pumps are drawing from “definite

underground channels” and whose are not, and they are not nearly done. The

adjudication court initiated the quest in 1987 with five days of hearings on the

relationship between surface water and groundwater, followed by a round of

briefing and argument and an order issued in 1988. The 1988 order defined

subflow by a functional test, the “50%/90 day rule,” which depended on the degree

of surface stream depletion induced by a hypothetical 90-day operation of a

groundwater pump.

142

In 1993, this rule was overturned on interlocutory appeal by

the Arizona Supreme Court, which found it to be at odds with Southwest Cotton

because it did not limit subflow to water “within or immediately adjacent to the

stream bed.”

143

On remand, the adjudication court came up with a new test, under which

underground water is considered subflow if it is found within the “saturated

floodplain holocene alluvium,” i.e., within the water-saturated sediments laid

down by a stream in its floodplain within the past 10,000 years or so.

144

This test

survived interlocutory review by the Arizona Supreme Court in 2000,

145

but the

affirmation of the test merely set the stage for the next three tasks, namely: (1) the

development of a protocol for determining whether a particular well does or does

not fall within the saturated floodplain holocene alluvium; (2) the application of

this protocol to Arizona’s thousands of groundwater wells to determine which

need to be included in the Adjudication; and (3) the incorporation of the included

wells into the Adjudication. Six years after the affirmation of the test, the first task

is not complete, the second task has not yet begun, and the third task has barely

been imagined.

After the Arizona Supreme Court affirmed the “saturated floodplain

holocene alluvium” definition of subflow, the Gila River adjudication court, in

January 2002, ordered ADWR to prepare a report “specifically identifying and

describing the procedures and processes it proposes to use to establish the limits of

the subflow zone . . . .”

146

After the filing of the report and more than three years

of comments, objections, discovery, briefings, and hearings, the court approved

ADWR’s report, with modifications, in September 2005.

147

The court’s decision

has been appealed to the Arizona Supreme Court; it is unknown whether the court

will accept the interlocutory appeal, and, if it does, how long it will take to brief,

argue, and decide the appeal.

142. See Gila River II, 857 P.2d at 1239.

143. Id. at 1245.

144. See In re Gen. Adjudication of All Rights to Use Water in the Gila River

Sys. & Source (Gila River IV), 9 P.3d 1069, 1073 (Ariz. 2000).

145. Id.

146. In re Gen. Adjudication of All Rights to Use Water in the Gila River Sys. &

Source, No. W-1, W-2, W-3, W-4 (Consolidated), Contested Case No. W1-103 (Ariz.

Super. Ct. Maricopa County filed Jan. 22, 2002) (minute entry).

147. In re Gen. Adjudication of All Rights to Use Water in the Gila River Sys. &

Source, No. W-1, W-2, W-3, W-4 (Consolidated), Contested Case No. W1-103 (Ariz.

Super. Ct. Maricopa County Sept. 28, 2005) (order approving report of the Special Master).

2007] ARIZONA WATER ADJUDICATION

425

If and when the Arizona Supreme Court either decides not to hear the

appeal or to affirm the adjudication court’s decision, the actual process of

determining which wells are pumping subflow, and therefore should be included in

the Adjudication, may begin. This process will involve: (a) examination and

interpretation of geologic maps, which ADWR estimates will take four to six

months for each of seven sub-watersheds within the Gila watershed, or two to four

years altogether;

148

(b) computer modeling to determine the cones of depression of

wells that lie outside, but near, the saturated floodplain holocene alluvium, which

ADWR estimates could take “several years;”

149

and (c) determination, through

remote sensing, existing records, and field investigations, of which wells may be

excluded from the Adjudication because their effect on streamflow is de minimis,

which will take another three to five years.

150

In other words, the process of

determining who the parties to the Adjudication are, which may fairly be

characterized as preliminary to the merits of the Adjudication, is likely a decade or

more from completion.

Once this “preliminary” task is completed, the claims of those well

owners whose wells are determined to be pumping non–de minimis subflow will

need to be brought into the Adjudication. No one knows exactly how this will

happen. Even though subflow has been classified as appropriable water since

Southwest Cotton in 1931, both the government and most well owners have always

acted as if their wells were outside the appropriation system. Thousands of wells

have been drilled and operated without appropriation permits or certificates of

water rights. Most well owners have not filed statements of their claims in the

Adjudication, the hydrographic survey reports prepared by ADWR so far have not

included groundwater wells, and well owners have never been assigned priority

dates or had their rights quantified. The Author will not venture to guess how long

it will take to bring these claimants into the Adjudication, but it won’t be quick and

it won’t be easy.

B. The Binding Effect of Prior Decrees

A second “preliminary” issue that has only partly been resolved is

whether, and to what extent, prior decrees of water rights within the Gila

watershed are binding upon the parties to the current adjudication. Such decrees

include the Kent Decree on the Salt River

151

and the Globe Equity Decree on the

Gila River.

152

It took the courts five years to determine the binding effect of the Globe

Equity decree. Motions for summary judgment on this issue were filed in 2001.

153

In 2002, the adjudication court held that Globe Equity Decree precludes any party

148. ARIZ. DEP’T OF WATER RES., SUBFLOW TECHNICAL REPORT, SAN PEDRO

WATERSHED 42 (2002), available at http://www.azwater.gov/dwr/Content/Publications/

files/subflow_technical_report_San_pedro_watershed_A_032902.pdf.

149. Id. at 43.

150. Id. at 44–45.

151. See supra notes 21–23 and accompanying text.

152. See supra notes 66–72 and accompanying text.

153. See In re Gen. Adjudication of All Rights to Use Water in the Gila River

Sys. & Source, 127 P.3d 882, 886 (Ariz. 2006).

ARIZONA LAW REVIEW [VOL. 49:405

426

to that decree, including Indian tribes who were represented by the United States

as trustee, from claiming any more water from the mainstem of the Gila River than

was awarded by that decree.

154

Such parties, however, are not precluded from

claiming additional water from tributaries to the Gila. Four years later, in 2006, the

Arizona Supreme Court affirmed.

155

Although this issue is now resolved with respect to the Globe Equity

Decree, significant questions remain with respect to other decrees, particularly the

Kent Decree. While the Salt River Project relies on the Kent Decree to establish

the rights of its members to hundreds of thousands of acre-feet of Salt and Verde

River water, many parties to the current adjudication, including many Verde

Valley water users, were not parties to the Kent Decree. Under the rules of res

judicata, such non-parties to the Kent Decree cannot be bound by it. Therefore,

although SRP members are likely precluded from claiming more water than they

were awarded by the Kent Decree, other parties should be free to argue that the

SRP members are entitled to less water than specified in the Kent Decree. Thus,

thousands of claims may have to be relitigated, and are potentially subject to the

same plethora of objections that sent farmers and ranchers in the Silver Creek

proceeding running to the legislature for relief.

V. THE EFFECT OF THE ADJUDICATION ON ENFORCEMENT OF

WATER RIGHTS IN ARIZONA

Ironically, while a primary motivation behind the initiation of the Gila

River Adjudication was to facilitate enforcement of water rights, the effect of the

Adjudication has been to stifle enforcement of water rights during the thirty-some

year pendency of the litigation.

Under Arizona’s water code, it is a misdemeanor to use water to which

another is entitled, to divert water from a stream “[w]ithout authority,” or to use,

store, or divert water without the required appropriation permit.

156

Since 1980, the

code has provided for the administration of water rights by the director of the

ADWR. Among other powers and duties of the director, the code specifies that

“[t]he director shall . . . [i]nvestigate and take appropriate action upon any

complaints alleging withdrawals, diversions, impoundments or uses of surface

water or groundwater that may violate this title or the rules adopted pursuant to

this title.”

157

The code also invests the director with rulemaking authority,

158

and

authorizes the director to divide the state into water districts and to appoint a

superintendent for each district,

159

with the authority to close diversion head gates

“to prevent the waste of water or its use in excess of the volume to which the

154. Id.

155. Id. at 903.

156. A

RIZ. REV. STAT. ANN. § 45-112(A)(3), (4), (7) (2006).

157. A

RIZ. REV. STAT. ANN. § 45-105(B)(8).

158. Id. § 45-105(B)(1).

159. Id. § 45-109. The provisions regarding water superintendents predate the

creation of ADWR in 1980. The 1980 code amendments assigned to ADWR the authority to

appoint the superintendents.

2007] ARIZONA WATER ADJUDICATION

427

owner of the right is lawfully entitled.”

160

A water superintendent may also arrest

any violator, deliver him or her to the county sheriff or police, and make a

complaint before a justice of the peace.

161

In an area where no water

superintendent has been appointed, “any affected person” may “make a complaint

to the sheriff or other police officer” against an alleged unlawful water user.

162

To date, no water superintendents have been appointed in Arizona, and

ADWR has established no administrative process for exercising its more general

authority to “take appropriate action” on a complaint of unlawful water use. In

other words, there is currently no administrative process for enforcement of water

rights in Arizona.

The lack of an administrative process for enforcement of water rights was

acutely demonstrated in a recent water use dispute between the United States

Forest Service and a private landowner. The Forest Service holds certificated water

rights for instream flows in Cave Creek and its tributary, Seven Springs Wash, on

the Tonto National Forest in the hills north of Phoenix. In 2004 and 2005, the

Forest Service complained to the Department of Water Resources that an upstream

landowner on Seven Springs Wash was diverting water from the springs that feed

the wash in a quantity, and for a use, that was not within the landowner’s water

right.

163

The Forest Service alleged that the unlawful diversion was depleting the

instream flows to which the Forest Service was entitled in Seven Springs Wash

and in Cave Creek.

In response to the Forest Service’s complaint, the director of ADWR sent

a letter disclaiming any authority to act:

Currently, the Maricopa County Superior Court is adjudicating

water rights in the Gila River Watershed to determine their

nature, extent, and relative priority. Until the water rights

involving Seven Springs are adjudicated and a water rights

decree is entered, state law does not authorize the Department to

take enforcement action regarding water uses at Seven Springs.

However under A.R.S. § 45-112, certain violations of surface

water law may be brought to the attention of the sheriff or other

police officers within the county. In addition, persons affected by

the violations may bring a private cause of action.

164

As the letter states, in the absence of an administrative enforcement

mechanism, the only options available to an aggrieved appropriator are to call the

sheriff or police or to file a private lawsuit. Neither option may be viable. With

regard to the first option, nothing in the statute requires a sheriff or police officer

to act on a complaint, and it seems unlikely that, given the choice, a sheriff or

160. Id. § 45-110(A)(4).

161. Id. § 45-112(C).

162. Id.

163. See Letter from Herbert R. Guenther, Dir., Ariz. Dep’t of Water Res., to

Gene Blankenbaker, Supervisor, Tonto National Forest, at 1 (Sept. 13, 2005) (referring to

Forest Service letter of July 11, 2005, and to contacts in 2004).

164. Id. at 2.

ARIZONA LAW REVIEW [VOL. 49:405

428

police officer who otherwise has no responsibility with respect to water rights

would want to get involved in a water rights dispute. Moreover, even if the sheriff

or police officer wanted to be helpful, the statute confers no civil enforcement

authority on either. Apparently, the only action either could take, other than

informal persuasion, would be to make an arrest and initiate a criminal

prosecution, an unlikely and unattractive prospect.

With regard to the second option, not only would a private lawsuit entail

substantial expense and delay, but it is unclear whether any such lawsuit could

proceed. The Arizona Court of Appeals has held that, while an adjudication is

ongoing, no court other than the adjudication court has jurisdiction to determine

water rights within the watershed covered by the Adjudication.

165

Since a private

lawsuit to enjoin allegedly unlawful water use would likely require determination

of the water rights of both the plaintiff and the defendant, under this holding no

such suit may be heard anywhere in the Gila or Little Colorado watershed while

these two adjudications are underway. The Gila and Little Colorado watersheds

collectively comprise most of the land area of the state. They also contain the vast

majority of the state’s population and, except for the Colorado River, most of its

surface water. Therefore, the result of the abstention of the Department and the

courts from water rights enforcement is that, unless and until these adjudications

are completed, there simply is no enforcement of water rights in most of Arizona.

The lack of current enforcement of water rights cannot be entirely

attributed to the two ongoing adjudications. The statutory authority for

administrative enforcement of water rights is general and vague, and the resources

available to ADWR for enforcement are extremely limited. It is therefore possible

that, even if the adjudications were not pending, there would still not be effective

administrative enforcement. But the possibility that any enforcement action might

lead to a jurisdictional conflict with an adjudication court has been a major factor

in ADWR’s decision to abstain from taking such action, and the likelihood that a

court would refuse to entertain a private lawsuit while the adjudications are

ongoing has probably discouraged such suits.

Of course, the question of whether and how water rights would be

administered and enforced were the two adjudications not pending cannot be

answered definitively, because there is simply no relevant modern experience. The

adjudications have been pending since 1974, which was six years before the

statutory creation of ADWR and its administrative authority. The areas of the state

that lie outside of the watersheds under adjudication are mostly remote, sparsely

populated, and have little water. We therefore simply do not know how Arizona

water law would work in the absence of the adjudications. ADWR’s enforcement

powers have not been tried or tested, no enforcement regulations have been issued,

no water superintendents have been appointed, and no body of interpretive case

law has developed.

166

In this sense, the adjudications have, as suggested by the title

of this Article, “eaten” Arizona water law.

165. Gabel v. Tatum, 707 P.2d 325 (Ariz. Ct. App. 1985).

166. See, e.g., A

RIZ. REV. STAT. ANN. §§ 45-105, 45-109, 45-110, 45-112 (2006),

Notes of Decisions (listing only one case, and no cases since 1969, interpreting or applying

these sections).

2007] ARIZONA WATER ADJUDICATION

429

VI. B

AILING OUT: THE MOTIONS FOR ORDERS TO SHOW CAUSE

On April 26, 2004, SRP, which had initiated the Gila River Adjudication

exactly thirty years earlier, filed in the Gila River adjudication court five motions

requesting preliminary injunctions against five groups of water users in the Verde

Valley. According to SRP, these water users’ diversions and groundwater pumps

were depleting flows in the Verde River, which is tributary to the Salt, and were

thereby depriving SRP’s members and customers of Salt River water to which they

were entitled by virtue of their senior water rights.

167

In other words, SRP was

seeking interim relief to address the very problem that had prompted it to initiate

the Adjudication thirty years earlier. In a memorandum supporting the motions,

SRP’s attorneys colorfully expressed their frustration both at the failure of the

Adjudication to come to fruition in a timely manner and at the lack of any effective

alternative administrative or judicial mechanism, outside the Adjudication, to

enforce its water rights:

On the spring afternoon of April 26, 1974, the undersigned attorney,

on behalf of SRVWUA [(Salt River Valley Water Users

Association, the private association of users of water from the Salt

River Project)], delivered to the Arizona State Land Department a

petition to determine the water rights in the Salt River above Granite

Reef Dam. At that time, the nation was in the midst of the

Watergate scandal, and Richard Nixon was still President (until

August). The top album of the year was the soundtrack from

“American Graffiti,” and the most popular movie was “The

Towering Inferno.” Hank Aaron hit his 715th homerun that summer,

and the Boston Celtics beat Kareem Abdul-Jabbar and the

Milwaukee Bucks in the NBA championship. The population of

Phoenix was around 600,000. SRP was concerned that upstream

junior water users were taking water (through surface diversions and

pumps) in derogation of the senior vested rights of SRP and the

SRVWUA shareholders.

Many things have changed in thirty years, but some things have,

unfortunately, stayed almost exactly the same. This Adjudication

has now lived through seven U.S. Presidents. During this time, the

population of Phoenix has increased several-fold, Kareem has long

since left Milwaukee, and the Bucks have not seen the NBA

championship in decades. The upstream water diversions by junior

users in derogation of the senior vested rights of SRP and the

SRVWUA shareholders, however, still continue unabated and, if

anything, have increased. In this Adjudication, time has virtually

stood still.

On this, the thirtieth anniversary of the filing of its original

adjudication petition, SRP has filed with the Court five OSC [(Order

to Show Cause)] applications and requests for injunctions against

167. See Salt River Project’s Consolidated Memorandum Re Applications for

Orders to Show Cause and Requests for Injunctions at 4–5, In re Gen. Adjudication of All

Rights to Use Water in The Gila River Sys. & Source, Nos. W-1, W-2, W-3, W-4

(Consolidated) (Ariz. Super. Ct. Maricopa County Apr. 26, 2004).

ARIZONA LAW REVIEW [VOL. 49:405

430

water users in the Verde Valley. The water users named in these

applications are perhaps among the most egregious, but certainly not

the only, upstream water users who continue to engage in illegal and

unauthorized diversions (on the surface or by pumps) that adversely

affect the ability of SRP and the SRVWUA shareholders to exercise

their vested senior rights. SRP has notified these individuals in

writing of their transgressions, but they have refused to stop. The

Arizona Department of Water Resources (“ADWR”) has, on at least

one occasion, notified one of these water users that it needed to file

an Application to Appropriate or stop using water, and that water

user simply refused to do so. In that same instance, SRP requested

permission to intervene in other superior court proceedings to,

among other things, enforce the senior rights of SRP and the

SRVWUA shareholders against these junior users. The superior

court rejected SRP’s request to intervene, stating that the proper

forum in which to address these issues was this Adjudication Court.

SRP recognizes that this is a massive case, that the Court has

numerous other matters that require its attention, and that ADWR

has limited funding. Faced with these difficulties, all parties must

concede that this Adjudication likely will take many more years,

and perhaps decades, to complete. SRP has been a consistent

proponent of completing this Adjudication in a timely and efficient

manner, but it recognizes the inherent delays associated with the

nature of this proceeding.

The long-enduring nature of this proceeding should not, however,

require holders of senior rights to suffer at the whims of junior users

for multiple decades.

168

SRP’s motions were successful. Four out of five of the motions resulted

in settlements whereby the target water users obtained and transferred water rights

from third parties in order to allow their (previously unlawful) water uses to

continue. The water uses originally associated with the transferred water rights will

be retired, thereby, at least in theory, restoring the depleted flows to the Verde

River.

The fifth motion was actually litigated. After briefing by both sides,

Judge Eddward Ballinger of the Maricopa County Superior Court issued an order

on August 28, 2006, holding that SRP was entitled to a preliminary injunction

against the Shield Ranch to restrain the ranch from irrigating 22 acres of farmland

in the Verde Valley for which the ranch had “no colorable claim” of a water

right.

169

Judge Ballinger’s order was a significant milestone not only in the history

of Arizona’s general stream adjudications, but also in Arizona water law in

general. It was the first time in over thirty years that a water right has actually been

enforced in the state.

168. Id. at 2–4.

169. In re Gen. Adjudication of All Rights to Use Water in the Gila River Sys. &

Source, Nos. W-1, W-2, W-3, W-4 (Consolidated) (Ariz. Super. Ct. Maricopa County Aug.

28, 2006) (minute entry showing grant of summary judgment).

2007] ARIZONA WATER ADJUDICATION

431

But the order did not represent the success of the Gila River Adjudication.

Rather, it represented the Adjudication’s failure and futility. The order was not the

culmination of a systematic determination of all water rights in a watershed.

Instead, it grew out of a recognition that (1) such a systematic determination is not

likely to occur in a reasonable timeframe, and (2) such a systematic determination

is not necessary for the resolution of specific conflicts over water use. It was

because of the Adjudication’s failure to reach, or even promise, a timely

completion that the request for the injunction was necessary. And the injunction

itself demonstrated that a remedy could be provided for a specific problem without

adjudicating all water rights in the watershed.

While SRP’s motions for preliminary injunctions resulted in relief with

respect to a handful of alleged unlawful water users, these motions constitute a

threat to the future orderly progress of the Adjudication. If such motions become

the standard mechanism for addressing claims of unlawful water use, they could

greatly multiply in number and the adjudication court could become swamped with

requests to provide relief in individual water disputes. The time and resources

required to address such disputes would come at the expense of the court’s

progress, such as it is, toward the Adjudication’s goal of a systematic and

comprehensive adjudication of water rights.

VII. GENERAL STREAM ADJUDICATIONS:

AN IDEA WHOSE TIME HAS GONE?

The enormous resources that have been invested in Arizona’s general

stream adjudications, their failure to reach a timely conclusion, and their negative

effect on ongoing administration of water rights in the state raise the issue of

whether these adjudications are really a good idea at all.

170

The theory behind such

adjudications is simple: If the water supply is insufficient to satisfy all claims

(which it generally is in the western United States), and if such claims are subject

170. Such problems are not unique to Arizona. See Thorson et al., Dividing

Western Waters I, supra note 6, at

358 (“Modern general stream adjudications, most of

which have been filed since the 1970s, are characterized by their enormity and longevity.

These complex lawsuits are among the largest civil proceedings ever litigated in state or

federal courts.”); Thorson et al., Dividing Western Waters II, supra note 6, at 303 (“These

water rights adjudications in major river basins typically involve tens of thousands of

parties, consume tens of millions of dollars in public and private funds, sometimes

irreparably divide communities, and often offer no assurance that they will ever end.”).

At an American Bar Association conference in 1997, a panel of attorneys discussed

their experiences in general stream adjudications in Arizona, New Mexico, Idaho, Montana,

Utah, Colorado, Oregon, and Nevada. A synopsis of the panel discussion stated,

Each panelist expressed frustrations with laborious, lengthy, and costly

western stream adjudications. Progress has been elusive in many states,

and the simple goal of quantifying and prioritizing water rights has

proved difficult to achieve. After twenty or more years of litigation in

many western states, the panelists pointed out that few adjudications are

complete.

FFICE OF THE SPECIAL MASTER, ARIZ. SUPREME COURT, ARIZONA GENERAL STREAM

ADJUDICATION BULLETIN 3–4 (1997), available at http://www.supreme.state.az.us/

waternews/issues/mar97.htm.

ARIZONA LAW REVIEW [VOL. 49:405

432

to dispute (which they inevitably are), then litigation is inevitable. And if litigation

is unavoidable, it is better to join all claimants in a single legal proceeding rather

than for the courts to adjudicate water claims piecemeal as disputes arise.

Litigation of individual water disputes, the theory goes, is inefficient because the

result is binding only on the parties. Therefore, any water rights determined by a

court in the course of adjudicating a specific dispute between a limited number of

parties will be subject to re-litigation in subsequent suits involving different

parties. Only by joining all water claimants on a stream in a single proceeding can

secure water rights be established.

171

But the convening of a massive proceeding to determine all water rights

on a stream creates another type of inefficiency, namely, it forces the litigation of

countless issues that, in the absence of such a proceeding, might never have arisen

in the course of actual disputes.

172

For example, if a rancher claims a stockwater

right on a small creek that drains into a larger creek that drains into a river, it is

possible, but not likely, that the existence, priority date, or quantity of that

rancher’s right will be a dispositive issue in a water dispute between that rancher

and a large irrigation district that relies on water diverted from the same river two

hundred miles downstream. If the rancher and the irrigation district are joined,

along with all other claimants, in a general stream adjudication, then the irrigation

district will be forced to assert in that adjudication whatever objections it might

conceivably have to the rancher’s claim, on penalty of having such objections

forever precluded in the unlikely, but possible, event that a dispute between the

rancher and the district should arise in the future. This is exactly what happened in

the Silver Creek proceeding in the Little Colorado adjudication.

173

When the court

attempted to determine the water rights of farmers and ranchers along Silver

Creek, numerous parties felt compelled to assert all sorts of objections to the

farmers’ and ranchers’ claims, regardless of the likelihood that such claims, and

such objections, would ever be at issue in any actual dispute. The number of

objections overwhelmed both the claimants and the court. If and when the

adjudication courts resume their attempts to actually determine individual water

rights, as they must do if the adjudications are ever to be completed, the same

scenario is likely to re-emerge, not just in the Silver Creek watershed but in every

watershed in the Gila and Little Colorado drainages.

VIII. AN ALTERNATIVE MODEL

Experience to date suggests that the completion of Arizona’s general

stream adjudications in the foreseeable future is not likely, and Judge Ballinger’s

recent order in the Gila River Adjudication suggests that it is not necessary. Judge

Ballinger’s order demonstrates that water rights can be enforced without awaiting

a determination of all water rights in a stream system. Therefore, the public

interest might best be served by simply abandoning the quest for comprehensive

determinations and devoting resources instead to developing an efficient

171. See, e.g., Thorson et al., Dividing Western Waters I, supra note 6, at 407.

172. Cf. Thorson et al., Dividing Western Waters II, supra note 6, at 477 (“The

myth of comprehensiveness has led some states to adjudicate some areas and some types of

rights that, from a water management perspective, do not need adjudication.”).

173. See supra Part III.E.

2007] ARIZONA WATER ADJUDICATION

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mechanism for enforcement of water rights, while providing a forum for

adjudication of water rights where such adjudication is needed to resolve actual

disputes. Specifically, I propose the following:

(1) ADWR should develop an administrative process for receiving,

hearing, and acting upon complaints of unlawful or out-of-priority water uses.

Such a process might be developed under the administrative authority granted

ADWR under the existing water code, including the authority to appoint water

superintendents. However, the development of such a process would best be

facilitated by new legislation that includes more specific direction and authority as

well as funding.

(2) The general stream adjudications should be reconstituted as standing

tribunals to which cases can be referred when, in the course of addressing a claim

of unlawful or out-of-priority water use, it becomes necessary to resolve a dispute

over the existence or characteristics of a particular water right or rights. In other

words, instead of systematically attempting to determine all water rights,

adjudication courts would instead determine, as and when the need arises, just

those rights whose existence or characteristics are dispositive of actual water

disputes. A case could be referred to an adjudication court either by ADWR or by

either of the parties to the dispute. Parties to a settlement desiring to have the

settlement formalized as a decree could also submit the settlement to an

adjudication court for approval, as they do in the current Gila River and Little

Colorado adjudications.

Such a “rolling” adjudication has a successful precedent in Colorado’s

system of water courts. In the Colorado system, the water courts are constantly

adjudicating new water rights as they are established.

174

The operation of the

system has been described by Colorado Supreme Court Justice Gregory J. Hobbs,

Jr.:

Each water court publishes a monthly resume of

applications received. The resume summarizes important details of

an application; the water courts supply standardized forms for filing.

The resume serves as notice to all interested persons for purposes of

subject matter and personal jurisdiction. Persons who do not enter

the noticed proceeding remain nonetheless bound by the result. The

adequacy of the notice is subject to a “reasonable inquiry” standard

regarding the nature, scope, and impact of the claim.

In every water division, Colorado's adjudication is

ongoing. Pursuant to the monthly resume notice, each application

proceeds to judgment and to decree separately. If appealed, the

application continues on to the Colorado Supreme Court for review

and decision without the need to wait for any other case.

175

Colorado’s system is purely judicial. In Colorado, a would-be

appropriator needs no permission from any administrative agency before initiating

174. See COLO. REV. STAT. §§ 37-92-201 to -402 (2006).

175. Gregory J. Hobbs, Jr., Colorado’s 1969 Adjudication and Administration

Act: Settling In, 3 U.

DENV. WATER L. REV. 1, 15 (1999) (footnotes omitted).

ARIZONA LAW REVIEW [VOL. 49:405

434

a water use. Because of this lack of administrative control over new

appropriations, other states, including Arizona, have not adopted the Colorado

system.

176

Moreover, because most of Arizona’s surface water has already been

appropriated, switching over to the Colorado system for new appropriations at this

late date would largely be a moot exercise. Nonetheless, the Colorado system is

useful as a procedural model for Arizona’s stream adjudications because it

demonstrates that water rights can be adjudicated one (or a group) at a time,

instead of all in a single proceeding.

The key distinction between the Colorado system and the one I propose

for Arizona is that whereas in Colorado a case is initiated by the filing of an

application for a new water right, in the proposed Arizona system a case would be

initiated either (1) by referral of a contested water right from the ADWR’s

administrative enforcement tribunal, or (2) by submission of a settlement for

approval. Despite this difference, the Arizona system would share with Colorado’s

water courts the essential attribute of an ongoing adjudication that hears individual

cases as and when they arise, and notice of whose proceedings is published and

widely disseminated. As in Colorado, any interested party would be permitted to

enter and participate in any case, and all interested parties would be bound by the

ensuing determinations of water rights.

Of course any party whose water right is at issue in a case in this “rolling”

adjudication would still face the prospect, as did the ranchers and farmers in the

Silver Creek fiasco, of a large number of parties entering the proceeding to object

to its claimed right. But, unlike in the current adjudications, where all such rights

are at issue, in the reformed system only those claimants whose water rights are

determinative of the outcome of actual disputes will face such a prospect.

Moreover, any such claimant may avoid adjudication of its water rights by settling

the underlying dispute out of court, leaving the final determination of its rights for

another day. Out-of-court settlements would not be binding upon other parties, but

could spare the court and the disputants the time and expense of a contested,

binding determination of water rights. Settlers wishing to have their settlement

embodied in a binding decree, however, would still have to face whatever

challenges may arise in the adjudication court.

176. Colorado’s lack of a permit requirement precludes the imposition of a public

interest test such as that contained in Arizona’s water code, see supra text accompanying

note 42. Most western states impose a similar test on applicants for new water

appropriations. See A.

DAN TARLOCK, JAMES N. CORBRIDGE, JR. & DAVID H. GETCHES,

WATER RESOURCE MANAGEMENT 312–29 (5th ed. 2002). Colorado’s choice not to impose

such a test, or to require any sort of permission from an administrative agency, may reflect

that state’s traditional hostility to limitations on the free appropriation of water. See COLO.

CONST. art. XVI, § 6 (“The right to divert the unappropriated waters of any natural stream to

beneficial uses shall never be denied.”). See also Coffin v. Left Hand Ditch Co., 6 Colo.

443, 446 (1882) (“The right to water in this country, by priority of appropriation thereof, we

think it is, and has always been, the duty of the national and state governments to protect.”).

2007] ARIZONA WATER ADJUDICATION

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IX. A

PPLICATION OF THE ALTERNATIVE MODEL TO INDIAN

RESERVED WATER RIGHTS

The adjudication or settlement of Indian reserved water rights claims has

been a major concern of the Gila River Adjudication and has been one of the few

areas in which the Adjudication has achieved substantial success. Arizona’s 22

Indian reservations comprise approximately 25 million acres, or about a third of

the area of the state, with a total population of about 160,000 people.

177

Under the

decision of the United States Supreme Court in Winters v. United States,

178

each

reservation has a reserved water right sufficient to fulfill its purpose. Each

reservation’s water right has a priority dating to the creation of the reservation.

179

While the precise methodology for determining how much water each

reservation has a right to is a matter of some uncertainty,

180

there is general

agreement that many Indian reserved water rights are very large. For example, the

Gila River Indian Community (“GRIC”) has claimed about 1.5 million acre-feet of

Gila River water, which exceeds the average annual flow of the river.

181

Although

GRIC has now settled for a lesser amount of water, the settlement amount—about

650,000 acre-feet from a variety of sources

182

—is still enormous.

With their large quantities and early—usually nineteenth century—

priority dates, Indian reserved water rights are clearly a key element of Arizona’s

water use picture. The conventional wisdom has long been that any adjudication of

water rights that does not include Indian reserved rights will be ineffective in

providing the certainty that water users need.

183

In order to allow state courts to

adjudicate Indian and other federal reserved water rights, Congress in 1952 passed

the “McCarran Amendment,” which waived the sovereign immunity of the United

States to be joined in suits for the adjudication and administration of water

rights.

184

The McCarran Amendment has been interpreted to permit state courts to

adjudicate Indian reserved rights, which are held in the name of the United States

as trustee for Indian tribes.

185

Indian reserved rights have been included in the Gila

177. Arizona Commission of Indian Affairs, Tribal Demographics,

http://www.indianaffairs.state.az.us/tribes/demo.html (last visited Apr. 12, 2007).

178. 207 U.S. 564 (1908).

179. Cappaert v. United States, 426 U.S. 128, 138 (1976).

180. See Arizona v. California, 373 U.S. 546, 600–01 (1963) (determining that

each of five Indian reservations along the lower Colorado River is entitled to enough water

to irrigate the “practicably irrigable acreage” of the reservation); In re Gen. Adjudication of

All Rights to Use Water in the Gila River Sys. & Source (Gila River V), 35 P.3d 68 (Ariz.

2001) (rejecting the “practically irrigable acreage” rule and adopting a vague, multi-factor

standard).

181. S. Joshua Newcom, Peace on the Gila? Pending Gila River Indian

Community Settlement Tied to CAP Repayment,

RIVER REP. (Water Educ. Found.,

Sacramento, Cal.), Summer 2001.

182. Id.

183. See, e.g., Moore & Weldon, supra note 2, at 722–26.

184. 43 U.S.C. § 666 (2000).

185. Colo. River Water Conservation Dist. v. United States, 424 U.S. 800 (1976).

ARIZONA LAW REVIEW [VOL. 49:405

436

River Adjudication,

186

and settlement of several tribes’ claims, including a pending

settlement of GRIC’s claims,

187

has been a major accomplishment of the

Adjudication.

But the United States Supreme Court has held that the United States can

only be joined in a general adjudication to determine all water rights on a stream,

not in private litigation over a specific water dispute.

188

There is a significant

concern as to whether the “rolling” adjudication proposed herein would be

sufficiently comprehensive to qualify for the McCarran Amendment’s waiver of

sovereign immunity. If not, then the adjudication court would not have jurisdiction

to adjudicate Indian water rights unless the United States or a tribe chose to

participate in the Adjudication by voluntarily submitting to the court’s jurisdiction.

There are several answers to this concern. First, adoption of the proposed

alternative model for the Adjudication in the future should not affect Indian water

rights settlements that have already been ratified by Congress or by the current

adjudication court. These include settlements of the water rights claims of the

Tohono O’odham (formerly Papago) Indian Nation,

189

the Fort McDowell Indian

Community,

190

the Salt River Pima-Maricopa Indian Community,

191

the Zuni

Indian Tribe,

192

and, most important, GRIC,

193

whose claims are by far the largest

of any Indian tribe in the Adjudication.

Second, it is possible that the proposed rolling adjudication would qualify

for McCarran Amendment jurisdiction. The United States Supreme Court has held

that Colorado’s system of rolling adjudications does meet the requirements of the

McCarran Amendment, even though, strictly speaking, the rolling adjudications do

not adjudicate all water rights in a single proceeding.

194

Moreover, the Court held

that the United States could be joined in a late round of an adjudication that

addressed only water rights acquired since the last round, even though the United

186. See United States v. Superior Court, 697 P.2d 658 (Ariz. 1985) (affirming

court’s jurisdiction to adjudicate Indian reserved rights in the Gila River adjudication); see

also Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1983) (holding that federal district

courts properly abstained from adjudicating Indian reserved rights in deference to ongoing

Gila River and Little Colorado River adjudications).

187. See In re Gen. Adjudication of All Rights to Use Water in the Gila River

Sys. & Source, Nos. W-1, W-2, W-3, W-4 (Consolidated), Contested Case No. W1-207,

(Ariz. Super. Ct. Maricopa County May 24, 2006) (Order for Special Proceedings for

Consideration of the Gila River Indian Community Water Rights Settlement); Newcom,

supra note 181.

188. Dugan v. Rank, 372 U.S. 609, 618 (1963).

189. See Southern Arizona Indian Water Rights Settlement Act of 1982, Pub. L.

No. 97-293, §§ 301–315.

190. See Fort McDowell Indian Community Water Rights Settlement Act of

1990, Pub. L. No. 101-628, §§ 401–413, 104 Stat. 4480–92.

191. See Salt River Pima-Maricopa Water Rights Settlement Act of 1988, Pub. L.

No. 100-512, 102 Stat. 2549.

192. See Zuni Indian Tribe Water Rights Settlement Act of 2003, Pub. L. No.

108-34, 117 Stat 782.

193. See Arizona Water Rights Settlement Act, Pub. L. No. 108-451, 118 Stat.

3478 (2004).

194. See United States v. Dist. Court for Eagle County, 401 U.S. 520 (1971).

2007] ARIZONA WATER ADJUDICATION

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States had not been a party to any of the previous rounds.

195

Thus, the Court seems

willing to take a flexible, pragmatic approach to applying the McCarran

Amendment.

196

This pragmatic approach, combined with the Court’s recognition

of an explicit congressional policy favoring the adjudication of water rights in state

courts,

197

might lead the Court—or a lower court following its precedents—to

conclude that the rolling adjudication system proposed herein is sufficiently

“general” to fall within the McCarran Amendment’s waiver of sovereign

immunity.

Third, even if the proposed adjudication model does not qualify for the

McCarran Amendment’s waiver of sovereign immunity, Indian tribes, and the

United States as their trustee, may well find it in their interest to voluntarily submit

to the jurisdiction of the adjudication courts. While many tribes, and the United

States, have historically resisted the jurisdiction of state courts over their water

rights,

198

experience in recent decades has shown that state courts, and particularly

the Arizona Supreme Court, are quite capable of rendering water rights decisions

favorable to Indian interests.

199

Moreover, numerous tribes have benefited

enormously from settlements of their water rights in the context of state court

adjudications.

200

A prime example of a tribe benefiting from participation in a

state-court adjudication comes from the Gila River Adjudication itself, where the

settlement of GRIC’s claims provides for that Indian community to receive

hundreds of thousands of acre-feet of water from the Central Arizona Project and

other sources, as well as tens of millions of dollars in federal funding to finance the

infrastructure to put that water to use.

201

On the other hand, tribes whose water

195. Id. at 525.

196. See id. at 525–26. The Court derided as “extremely technical” the argument

that the McCarran Amendment did not apply because the U.S. was not a party to the earlier

rounds. Id. at 525.

197. See Colo. River Water Conservation Dist. v. United States, 424 U.S. 800,

819 (1976).

198. See, e.g., In re Gen. Adjudication of All Rights to Use Water in the Big Horn

River Sys. (Big Horn I), 753 P.2d 76, 86–88 (Wyo. 1988); United States v. Superior Court,

697 P.2d 658 (Ariz. 1985); Dist. Court for Eagle County, 401 U.S. 520.

199. See, e.g., In re Gen. Adjudication of All Rights to Use Water in the Gila

River Sys. & Source (Gila River III), 989 P.2d 739 (Ariz. 1999) (holding that Indian

reserved water rights may include rights to groundwater, and that Indian reserved rights are

protected by federal law where federal law provides greater protection than that which state

law provides to non-Indian water rights); Big Horn I, 753 P.2d at 99–114 (affirming

determination that the Wind River Indian Reservation holds reserved agricultural water

rights totaling over 500,000 acre-feet per year of surface water). But see id. at 97–99

(rejecting claims for groundwater and for additional reserved water for non-agricultural

purposes); In re Gen. Adjudication of All Rights to Use Water in Big Horn River Sys., 835

P.2d 273 (Wyo. 1992) (holding that tribes could not convert agricultural water rights to

other purposes without regard to state law).

200. See Reid Peyton Chambers & John E. Echohawk, Implementing the Winters

Doctrine of Indian Reserved Water Rights: Producing Indian Water and Economic

Development Without Injuring Non-Indian Water Users?, 27 GONZ. L. REV. 447 (1992). But

see D

ANIEL MCCOOL, NATIVE WATERS: CONTEMPORARY INDIAN WATER SETTLEMENTS AND

THE

SECOND TREATY ERA (2002) (exploring drawbacks as well as benefits of settlements).

201. See Newcom, supra note 181.

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rights have remained unadjudicated have sometimes been left high and dry as non-

Indian water users have made use of water that lawfully belongs to the tribes.

202

In addition to adjudicating water rights whose determination is necessary

to resolve water use conflicts, the reconstituted adjudication court proposed herein

could also be authorized, like the current adjudication court, to approve settlements

of Indian reserved water rights. The prospect of favorable settlements may well

induce tribes whose water rights are still unsettled and unadjudicated to remain

parties to the Adjudication even in the event that it is determined that the

reconstituted adjudication does not qualify for jurisdiction under the McCarran

Amendment.

Finally, if the reconstituted adjudication court does not qualify under the

McCarran Amendment, and some tribes do not choose to submit to its jurisdiction,

the court’s work could still proceed in their absence. Despite the conventional

wisdom that water adjudications must include reserved rights to be effective, the

existence of unadjudicated reserved rights has not historically been an impediment

either to non-Indian water development or to the resolution of disputes between

non-Indian water users.

203

Indeed, as noted above, it is Indian tribes, rather than

non-Indian water users, who have suffered when Indian reserved rights have

remained unquantified.

If a reconstituted adjudication court lacks jurisdiction to adjudicate Indian

or other reserved federal water rights, some tribes may seek to have their rights

adjudicated in separate proceedings in the federal courts.

204

Such separate, parallel

202. See Adrian N. Hansen, The Endangered Species Act and Extinction of Indian

Reserved Water Rights on the San Juan River, 37 A

RIZ. L. REV. 1305, 1316–18 (1995);

Monique C. Shay, Promises of a Viable Homeland, Reality of Selective Reclamation: A

Study of the Relationship Between the Winters Doctrine and Federal Water Development in

the Western United States, 19 E

COLOGY L.Q. 547 (1992); see also, e.g., William Douglas

Back & Jeffery S. Taylor, Navajo Water Rights: Pulling the Plug on the Colorado River?,

20 NAT. RESOURCES J. 71, 74, 90 (1980) (estimating that the reserved water rights of the

Navajo Nation may exceed 2 million acre-feet of water per year from the Colorado River,

but noting that little water is being used on the Navajo Reservation and that Navajo water

rights have been “all but ignored” in the development of the river); Hansen, supra, at 1320

(describing water rights settlements that have included commitments to provide water and

economic development funds to tribes). But see id. at 1325–29 (describing how the

Endangered Species Act has obstructed implementation of the settlements).

203. See J

OSEPH L. SAX ET AL., LEGAL CONTROL OF WATER RESOURCES 956 (4th

ed. 2006) (suggesting that “the states may be better off living with the uncertainty of

unquantified Indian and other federal claims, rather than making strenuous efforts to

adjudicate and settle them,” and asking whether states have “believed too much their own

rhetoric about the ‘need’ to adjudicate these rights”); see also id. at 941 (noting that

unadjudicated reserved rights have not slowed western water development).

204. See, e.g., United States v. Adair, 723 F.2d 1394 (9th Cir. 1983) (affirming

exercise of federal court jurisdiction to adjudicate Indian reserved water rights despite

pending general adjudication in state court). But see Moore & Weldon, supra note 2, at

720–23 (arguing that Adair should not be applied broadly). Early in the life of the Gila

River Adjudication, several Arizona Indian tribes brought an action for adjudication of their

water rights in federal court, but the action was dismissed in deference to the ongoing

adjudication in state court. See Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1983).

2007] ARIZONA WATER ADJUDICATION

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adjudications might be less efficient than a single proceeding in state court (though

they could hardly take longer, or consume more resources, than the current

Adjudication), but they are not necessarily such a bogeyman as they have

sometimes been made out to be.

205

Multiple adjudications on the same river system are not unusual. Indeed,

one of the major tasks in the current Gila River Adjudication has been to determine

the binding effect of decrees in prior adjudications.

206

Sorting out the mutually

binding effects of multiple adjudications conducted over a span of a century has

been a difficult task,

207

but the addition of a few contemporaneous decrees

determining the rights of individual Indian tribes would only marginally add to the

difficulty, and is hardly a reason for foregoing an otherwise attractive alternative to

the current quagmire.

CONCLUSION

The Gila River Adjudication has been a noble endeavor, combining the

skills, dedication, and efforts of thousands of clients, dozens of legislators, several

judges, and a generation of Arizona’s finest lawyers. Decisions of the United

States and Arizona Supreme Courts rendered in the Adjudication have clarified

important points of state and federal law, and settlements of reserved water rights

claims in the Adjudication have removed clouds on the rights of appropriative

water users and have provided substantial resources to long-deprived Native

Americans. But after a third of a century, the basic function of the Adjudication,

namely, the binding determination of the rights of tens of thousands of individuals,

corporations, and governments using water from the Gila River and its tributaries,

has barely begun.

208

Final resolution of “preliminary” issues, particularly the

determination of which of thousands of groundwater wells are included in the

Adjudication, is more than a decade away. If and when such issues are finally

resolved, the adjudication of individual water rights is likely to prove

unmanageable, as it did in the Silver Creek watershed in the Little Colorado

Adjudication a decade and a half ago. The Salt River Project’s recent successful

efforts to obtain preliminary relief against allegedly unlawful water users in the

Verde Valley have redirected some resources in the Adjudication toward solving

the problems that prompted the filing of the Adjudication in the first place, but

have also demonstrated that a comprehensive stream adjudication may not be the

best means of addressing those problems.

205. See, e.g., Moore & Weldon, supra note 2, at 722 (describing parallel

adjudications in state and federal courts as “a perilous approach” and “unworkable”); id. at

725 (arguing that an adjudication that does not include Indian reserved water rights is

“worthless”).

206. See ARIZ. REV. STAT. ANN. § 45-257(B)(1) (2006) (requiring adjudication

court to accept determinations of water rights in prior decrees).

207. See supra Part IV.B.

208. The former judge of the Little Colorado adjudication stated in 1996:

“Sometimes I feel like the French attempting to build the Panama Canal in the 1880s.

. . . [A]fter a decade of hard work by everyone involved, I look over my shoulder and still

see the Caribbean Sea.” Thorson et al., Dividing Western Waters II, supra note 6, at 302–03

(quoting Judge Allen Minker).

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The greatest problem in surface water rights administration in Arizona

today is not the lack of certainty and finality in those rights, but rather the lack of

an effective mechanism to enforce them. A comprehensive stream adjudication,

which makes judicial determination of water rights a prerequisite to enforcement,

does not address that problem; it aggravates it. An administrative process for water

rights enforcement, backed up by a judicial process for resolving disputes about

the quantity and characteristics of individual water rights if and when such

disputes arise in the course of actual water use conflicts, stands a better chance of

being a useful, practical tool. This Article suggests such a process, but does not

even begin to work out its details. Working out those details will itself be a

difficult process, and will likely take several years of negotiation, legislation, and

experimentation. No one can guarantee that such a process will be successful. But

the alternative—continuation of the Adjudication—will likely take several

decades, and, if experience is any guide, is likely to fail.