Extracted text (via pymupdf)
13412 characters
1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF MARICOPA
IN RE THE GENERAL ADJUDICATION
OF ALL RIGHTS TO USE WATER IN
THE GILA RIVER SYSTEM AND
SOURCE
W1-00-001234 (Consolidated)
Contested Case No. W1-11-000245
(Consolidated with contested case nos. W1-
11-003359 and W1-11-003397)
ORDER TO ADOPT FINAL REPORT
WITH CLARIFICATIONS
CONTESTED CASE NAME: In re Town of Huachuca
In re Whiting Ranches (consolidated)
HSR INVOLVED: San Pedro River Watershed Hydrographic Survey Report
DESCRIPTIVE SUMMARY: Special Master Harris’s final report, dated September 23,
2021, is adopted in full with clarifications as indicated.
NUMBER OF PAGES: 7
DATE OF FILING: March 26, 2026
FACTUAL AND PROCEDURAL BACKGROUND
On June 12, 2019, Special Master Harris initiated contested case In re Town of
Huachuca, case no. W1-11-0245. See W1-11-0245, Order to Initiate Contested Case
(June 12, 2019). Case W-11-0245 was set to determine rights to use water from five wells,
I
two of which the relevant Watershed File Report ("WFR") indicates are in the San Pedro
2
River subflow zone. 1 On August 7, 2019, Special Master Harris initiated and consolidated
3
contested cases In re Whiting Ranches, case nos. Wl-11-3397 and Wl-11-3359. See Wl-
4
11-3397, Order to Initiate Contested Case (August 7, 2019). Case W-11-3397 was set to
5
determine rights to use water from three wells, two of which the relevant WFRs indicate
6
are in the San Pedro River subflow zone.2 On January 15, 2020, Special Master Harris
7
consolidated these cases in order to resolve two legal issues in common. See Wl-11-0245,
8
Minute Entry (February 20, 2020).
9
On June 18, 2020, Special Master Harris designated two "Issues of Broad Legal
10
Importance" in the consolidated cases. See Wl-11-0245, Notice (June I 8, 2020). Pursuant
11
to the Rules of Proceedings Before the Special Master section 12.00, Special Master
12
Harris provided notice of this designation to all members of the Gila River and Little
13
Colorado River Court-approved mailing lists. Id. The Special Master subsequently set a
14
deadline of January 11, 2021, for responses addressing the merits of the issues from any
15
claimant in the adjudications. Wl-11-0245, Minute Entry (July 30, 2020). The June 18,
16
2020, notice framed the issues as follows:
17
I. Is the process set out in the 1919 Arizona Surface Water Code and
18
subsequent versions of that statute the exclusive method for a well
19
owner who has filed a statement of claimant under A.R.S. § 45-254 to
20
obtain an appropriative water right in Arizona for water pumped from a
21
well located in the subflow zone with a priority date after June 12, I 9 I 9?
22
2. Does the adjudication court have equitable powers to decree an
23
appropriative water right for a claimant who began withdrawing water
24
from a well located in the subflow zone after June 12, 1919, but did not
25
comply with the 1919 Arizona Surface Water Code and subsequent
26
versions of that statute?
27
1 WFR# 111-20-050 - Final San Pedro River Watershed Hydrographic Survey Report (1991).
28
2 WFR# 115-05-036 - Final San Pedro River Watershed Hydrographic Survey Report (1991).
2
1
2
After receiving responses regarding the designated issues, the Special Master set
3
an evidentiary hearing beginning on April 26, 2021 to find facts related to Issue #2 and
4
to provide context to the legal controversy. Wl-11-0245, Minute Entry (Mar. 2, 2021).
5
The evidentiary hearing was not intended to, and did not, constitute an adjudication of
6
any potential water rights of the Town of Huachuca City and Michael and Susan
7
Cavender.
8
On September 23, 2021, Special Master Harris filed her final report regarding the
9
issues of broad legal importance. Wl-11-0245, Report of the Special Master ("Final
10
Report") (September 23, 2021). In the Final Report, the Special Master set November 22,
11
2021 as the deadline to file objections and January 4, 2022 as the deadline to file
12
responses to objections. Various parties filed objections to the Final Report and responses
13
to those objections. The following brief description of the Special Master's work is
14
intended to aid in understanding the Court's rulings and modifies the Special Master's
15
findings and conclusions only where specifically noted.
16
17
LEGAL ISSUES
18
I.
Issue 1 - Legal Basis for Appropriable Water Right
19
20
21
22
23
24
25
26
27
28
The Special Master's Final Report summarizes the evolution of the required
process to establish Arizona state water rights over the past century. Final Report at 3-6.
Arizona has adopted the doctrine of prior appropriation to govern a person's legal rights
to use water from a broad range of appropriable water sources. Phelps Dodge Corp. v.
Arizona Department of Water Resources, 211 Ariz. 146, 149 (App. 2005); Slosser v. Salt
River Valley Canal Co., 7 Ariz. 376 (1901). Between 1893 and 1919, an appropriator
could establish a legal right to water by posting and filing a notice of intent with the
county recorder and putting the water to a beneficial use within a reasonable time, or the
appropriator could simply put the water to a beneficial use. Phelps Dodge Corp., 211
3
1 Ariz. at 149 ~ 16. On June 12, 1919, the Arizona Legislature changed the process and
2
the requirements for the acquisition of an appropriative water right when it enacted the
3
Arizona Surface Water Code (the "1919 Code"). The 1919 Code stated: "[t]he water of
4
all natural streams, or flowing in any canyon, ravine or other natural channel, or in definite
5
underground channel, and of springs and lakes, belongs to the public, and is subject to
6
beneficial use as herein provided." A.R.S. § 45-141.
7
The 1919 Code introduced new procedures to legally appropriate water. No longer
8
did the law allow a person to establish a right to appropriable water simply by putting the
9
water to a beneficial use. The 1919 Code required a person to file an application with the
10
appropriate state agency. Subsequent amendments to the 1919 Code consistently retained
11
the requirement that a person or entity must file an application with the state agency to
12
acquire a legal right to appropriable water. See Ariz. Code Ann. § 75-105 (1939).
13
By naming sub flow as a source of appropriable water, the Arizona Supreme Court
14
implicitly ruled that diversions ofsubflow initiated after June 12, 1919 are subject to the
15
1919 Code. Maricopa County Mun. Water Conservation Dist. No. Iv. Southwest Cotton
16
Co., 39 Ariz. 65 (1931), reh'g denied and opinion modified, 39 Ariz. 367 (1932). The
17
Arizona Supreme Court affirmed that holding four more times. 3 By retaining the
18
definition of appropriable water found in the 1919 Code, subsequent legislatures have
19
affirmed the conclusion in Southwest Cotton. Therefore, objections to the Special
20
Master's Final Report citing the absence of an explicit reference to sub flow in section 45-
21
141 are not persuasive. Objections that Southwest Cotton does not apply to the Water
22
Code because the case concerned only appropriations made prior to 1919 are also in error
23
by similar reasoning.
24
In addition to concluding that those who initiate uses of subflow after 1919 are
25
subject to the 1919 Code, the Special Master also correctly concluded that the Code is the
26
3 See Bristor v. Cheatham, 75 Ariz. 227,238 (1953); In re General Adjudication of All Rights to Use Water in the
27
Gila River System and Source, 175 Ariz. 382,391 (1993) (Gila If); In re General Adjudication of All Rights to
Use Water in the Gila River System & Source, 195 Ariz. 4 I I, 415 ,r 8 (1999) (Gila IJI);In re General Adjudication
28
of All Rights to Use Water in the Gila River Sys. & Source, 198 Ariz. 330, 333 ,r I (2000) (Gila JV).
4
1
exclusive means by which those water users may obtain appropriative right. Wl-11-0245,
2
Final Report at 3-13 (September 23, 2021). The Court adopts the Special Master's
3
conclusion that, although the Water Rights Registration Act "allows a person to file a
4
claim for water rights [with] a legal basis under existing law .... it contains no provision
5
for the creation of a legal basis." Id. at 9.
6
IT IS ORDERED adopting Conclusions of Law 1---6 with the clarification that
7
any references to "well owner" in the Special Master's Final Report, and in this order,
8
exclude wells serving as points of diversion for federal reserved water rights.
9
10
II.
11
Issue 2: Equitable Relief
The second issue of broad legal importance is whether the Court may equitably
12
decree appropriable water rights to owners of wells who are subject to, but failed to
13
comply with the 1919 Code. As the Special Master correctly concluded, the Superior
14
Court of Arizona does generally possess equitable authority, but that equitable authority
15
should only be exercised when the law permits. Final Report at 14 (citing Sertich v.
16
Moorman, 162 Ariz. 407,412 (1989).
17
As stated previously, since 19 I 9, statutes govern the acquisition of appropriative
18
water rights. The statutes are the sole mechanism for obtaining a water right, and equity
19
does not provide an exception for owners of wells who took no action to file an
20
application and obtain a permit to appropriate water, even where they relied on the
21
presumption that their wells pumped groundwater. Id. at 19.
22
Equally important, an equitable decree would impermissibly diminish the value of
23
junior appropriative rights. Such a decree would prejudice all other claimants on the
24
stream by upsetting other claimants' expectations of priority. Final Report at 20 ( citing
25
Phelps Dodge Corp. v. Ariz. Dep't of Water Res., 211 Ariz. 146, 148 (App. 2005).
26
Accordingly, such a grant could cause a taking.
27
28
5
1
Ultimately, the Special Master is correct that the Adjudication Court does not have
2
the power to equitably decree an appropriative water right "if such a decree means an
3
excuse from compliance with the law." Final Report at 19.
4
IT IS ORDERED adopting Conclusions of Law 7-10 and Finding of Fact 7 as
5
written. 4
6
FACTUAL FINDINGS
7
As discussed above, the Special Master conducted an evidentiary hearing
8
beginning on April 26, 2021 in order to provide context to the legal controversy. Wl-11-
9
0245, Minute Entry (Mar. 2, 2021). Objectors raised questions as to the relevance and
10
propriety of notice of the hearing.
11
First, the Final Report, though issued in consolidated cases Wl-11-3397 and Wl-
12
11-0245, did not resolve the specific claims or objections in these cases. While the
13
ultimate decision here rests on only some of the Special Master's findings of fact, the
14
Special Master had sufficient rationale for all of her findings of fact. Accordingly, the
15
Court approves those findings.
16
Second, some objectors incorrectly claim that the Special Mater did not provide
17
adequate notice of the evidentiary hearing. The Special Master issued the Notice of
18
Designation of an Issue of Broad Legal Importance as required by the Rules for
19
Proceedings Before the Special Master section 12.03 on June 18, 2020. At that time, any
20
interested party could have timely intervened. Further, as noted below, the Court's
21
decision ultimately does not tum on the bulk of the factual record. Accordingly, the Court
22
rejects objectors' arguments regarding notice of the evidentiary hearing.
23
THE COURT FINDS that Findings of Fact 1-6 are irrelevant to the issues of
24
broad legal importance at issue in these cases. This includes findings regarding the
25
current streamflow conditions on the relevant reaches of the San Pedro River.
26
27
28
4 While some parties object to the Special Master's reference in her Conclusion of Law #7 to an evidentiary
presumption that a well located outside the subflow zone is pumping percolating groundwater, the Court notes that
the Adjudication Court and the Supreme Court of Arizona have previously recognized that a well located outside
the subflow zone is presumed initially to be pumping percolating groundwater. Gila JV, 198 Ariz. 330, 343 (2000).
6
1
IT IS THEREFORE ORDERED referring contested cases Wl-11-3397 and
2
Wl-11-0245 to the Special Master in order to resolve the specific claims and objections
3
in those cases consistent with Findings of Fact 1- 6 of the Special Master's Final Report.
4
IT IS FURTHER ORDERED that adjudication of these contested cases should
5
be stayed until the Subflow Depletion Test is finalized. The cases may be deconsolidated
6
as the Special Master finds appropriate.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The Honorable Scott Blaney
Maricopa County Superior C
On March 26, 2026, the original of the foregoing was
delivered to the Clerk of the Maricopa County
Superior Court for filing and distributing a copy to all
persons listed on the Court-approved mailing lists for
these contested cases and the Court-approved mailing
lists for Wl-W4 and CV 6417.
7