                    SUPREME COURT OF ARIZONA
                            En Banc

                                  )   Arizona Supreme Court
                                  )   No. WC-11-0001-IR
IN RE GENERAL ADJUDICATION        )
OF ALL RIGHTS TO USE WATER IN     )   Maricopa County Superior
THE GILA RIVER SYSTEM AND SOURCE )    Court Case Nos.: W-1, W-2,
                                  )   W-3 and W-4
                                  )   (Consolidated) (Gila)
IN RE GENERAL ADJUDICATION        )   [Contested Case
OF ALL RIGHTS TO USE WATER IN     )    No. W1-104]
THE LITTLE COLORADO RIVER SYSTEM )
AND SOURCE                        )   Apache County Superior
                                  )   Court Case No. 6417 (LCR)
                                  )   [Contested Case
                                  )    No. 6417-100]
                                  )
                                  )
                                  )   O P I N I O N
__________________________________)


                 Review from the Superior Court
              in Apache County and Maricopa County
         The Honorable Eddward P. Ballinger, Jr., Judge

                            AFFIRMED
________________________________________________________________

THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL                 Phoenix
     By   Thomas C. Horne, Attorney General
          Theresa M. Craig, Assistant Attorney General
Attorneys for the State of Arizona

THE SPARKS LAW FIRM PC                                Scottsdale
     By   Joe P. Sparks
          Laurel A. Herrmann
Attorneys for the San Carlos Apache Tribe and Tonto Apache Tribe

SALMON LEWIS & WELDON PLC                                Phoenix
     By   M. Byron Lewis
          John B. Weldon, Jr.
          Mark A. McGinnis
Attorneys for Salt River Project Agricultural Improvement and
Power District and Salt River Valley Water Users’ Association
SALMON LEWIS & WELDON PLC                                Phoenix
     By   Paul R. Orme
Attorney for Central Arizona Irrigation and Drainage District
and Maricopa-Stanfield Irrigation & Drainage District

SNELL & WILMER LLP                                       Phoenix
     By   L. William Staudenmaier, III
          Andrew M. Jacobs
Attorneys for Arizona Public Service Company, Freeport-
McMoran Corporation, Roosevelt Water Conservation District

POLSINELLI SHUGHART PC                                     Phoenix
     By   Lucas J. Narducci
          Margaret LaBianca
Attorneys for BHP Copper Inc.

ENGELMAN BERGER PC                                       Phoenix
     By   William H. Anger
Attorney for City of Avondale, City of Chandler, City of
Glendale, City of Mesa, City of Scottsdale

BROWN & BROWN LAW OFFICES PC
     By   David Albert Brown                             St. Johns
          Douglas E. Brown                                   Eagar
Attorneys for City of Cottonwood, City of Show Low,
Franklin Irrigation District, Aztec Land and Cattle
Company Ltd.

BALLARD SPAHR LLP                                          Phoenix
     By   Lee A. Storey
          Sara V. Ransom
Attorneys for City of Flagstaff

GARY VERBURG, PHOENIX CITY ATTORNEY                        Phoenix
     By   Gary Verburg, City Attorney
          Cynthia S. Campbell, Assistant City Attorney
          Daniel L. Brown, Assistant City Attorney
Attorneys for City of Phoenix

MOYES SELLERS & HENDRICKS                                  Phoenix
     By   Steven L. Wene
Attorney for City of Safford

GILA RIVER INDIAN COMMUNITY                                Sacaton
     By   Linus Everling
          Thomas L. Murphy, Sr.
Attorneys for Gila River Indian Community


                                  2
FENNEMORE CRAIG PC                                       Phoenix
     By   Lauren J. Caster
          Gregory Loyd Adams
Attorneys for ASARCO LLC and Catalyst Paper (Snowflake) Inc.

LAW OFFICE OF L. ANTHONY FINES PC                                        Tucson
     By   L. Anthony Fines
Attorney for Gila Valley Irrigation District

NAVAJO NATION DEPARTMENT OF JUSTICE                               Window Rock
     By   Stanley M. Pollack

And

MCELROY MEYER WALKER & CONDON PC                                  Boulder, CO
     By   Scott McElroy
Attorneys for Navajo Nation

MONTGOMERY & INTERPRETER PLC                                       Scottsdale
     By   Susan B. Montgomery
          Robyn L. Interpreter
Attorneys for Yavapai-Apache Nation

UNITED STATES DEPARTMENT OF JUSTICE               Washington, DC
     By   Robert G. Dreher, Acting Assistant Attorney General
          F. Patrick Barry
          Mary Gabrielle Sprague
Attorneys for United States of America

ARIZONA DEPARTMENT OF WATER RESOURCES                    Phoenix
     By   Kenneth C. Slowinski
          David S. Johnson
Attorneys for Amicus Arizona Department of Water Resources
________________________________________________________________


P E L A N D E R, Justice

¶1         The   State    of   Arizona      filed   an   interlocutory   appeal

from an order issued in the general stream adjudications of the

Gila   River   System    and   Source    and   the   Little   Colorado    River

System and Source.        At issue is whether federal water rights



                                        3
were impliedly reserved on lands granted by the United States

government     to     the   State    of   Arizona     to   support   education   and

other public institutions (“State Trust Lands”).                       We accepted

review and now affirm the superior court’s ruling that there are

no implied federal reserved water rights for State Trust Lands.

                            I.   HISTORICAL BACKGROUND

¶2           In 1787, the federal government established a policy

to support public schools in new territories.                        See Northwest

Ordinance, Act of Aug. 7, 1789, ch. 8, 1 Stat. 50, 51-52 n.(a)

(affirming the 1787 Act of the Continental Congress).                       Congress

furthered this policy by granting land from the public domain to

new territories and states to be used for educational purposes.

See Lassen v. Arizona ex rel. Ariz. Highway Dep’t, 385 U.S. 458,

460 (1967).      When Congress established the New Mexico Territory,

which included the present State of Arizona, it “reserved for

the   purpose       of   being   applied       to   schools”   township     sections

sixteen and thirty-six.             Act of Sept. 9, 1850, ch. 49, § 15, 9

Stat.   446,    452      (“Organic    Act”).        Four   years   later,   Congress

“reserved for the establishment of a University” a grant of land

equal to two townships.             Act of July 22, 1854, ch. 103, § 6, 10

Stat. 308, 309.

¶3           Congress gave these land grants to Arizona when it

separated the Arizona Territory from the New Mexico Territory.

Act of Feb. 24, 1863, ch. 56, 12 Stat. 664, 665.                            In 1881,


                                           4
Congress provided the Arizona Territory with another grant of

seventy-two sections of land, “withdrawn from sale,” to support

a university.            Act of Feb. 18, 1881, ch. 61, 21 Stat. 326.

¶4          In       1910,        Congress      passed     the       Arizona—New       Mexico

Enabling Act (“Enabling Act”), which set forth the requirements

for the two territories to become states.                        Act of June 20, 1910,

ch. 310, 36 Stat. 557.                    The Enabling Act confirmed the prior

land   grants       and    also     granted     sections       two    and    thirty-two     in

every township to support the common schools.                                Id. § 24, 36

Stat. at 572.             It also provided “bulk” grants consisting of a

set    number       of    acres     for    other     specific        purposes,      including

universities; government buildings; prisons; insane asylums; a

school    for       the    deaf     and    blind;     normal     schools;         charitable,

penal,    and       reform    institutions;           agricultural          and    mechanical

colleges;       a    school       of   mines;       military     institutes;         and   the

payment of certain bonds.                 Id. § 25, 36 Stat. at 573.

¶5          In some instances, the particular sections granted to

support     common         schools        (“section-in-place          grants”)      were    no

longer    available          when      the    townships     were       finally       surveyed

because those sections had been settled, reserved for Indian

tribes, or otherwise reserved or disposed of under federal law.

See Report of the State Land Commission of Arizona 16, 41-42, 67

(1912-1914) [hereinafter Land Comm’n Report].                           To indemnify the

state for these preempted sections, Congress appropriated lands


                                                5
of like quantity (“indemnity-in-lieu selections”) and authorized

the state to select and receive such lands.                               Act of Feb. 28,

1891, ch. 384, 26 Stat. 796, 796-97; Act of Feb. 26, 1859, ch.

58, 11 Stat. 385.                The state acquired a fee interest in the

State Trust Lands upon completion of a survey for section-in-

place grants, and upon selection and approval by the Secretary

of the Interior (“Secretary”) for the bulk-grant and indemnity-

in-lieu selections.              Enabling Act, §§ 24, 29, 36 Stat. at 572-

74, 575-76; see Andrus v. Utah (Andrus), 446 U.S. 500, 506-07

(1980); Land Comm’n Report at 13-14.

¶6              The    Enabling     Act   required          Arizona       to   hold    granted

lands in trust:

       [A]ll lands hereby granted, including those which,
       having been heretofore granted to the said Territory,
       are hereby expressly transferred and confirmed to the
       said State, shall be by the said State held in trust,
       to be disposed of in whole or in part only in manner
       as herein provided and for the several objects
       specified in the respective granting and confirmatory
       provisions, and that the natural products and money
       proceeds of any of said lands shall be subject to the
       same trusts as the lands producing the same.

§    28,   36    Stat.    at     574.     The       Act    set    forth    lease      and   sale

requirements that may be enforced by the federal government, the

state, or any Arizona citizen.                      Id. § 28, 36 Stat. at 574-75.

The    state,         however,     was    given           exclusive       control      of   the

beneficiary schools, colleges, and universities subject to the

condition       that     trust    proceeds      support          only   non-sectarian       and



                                                6
non-denominational institutions.                  Id. § 26, 36 Stat. at 573-74.

¶7           At    statehood,         Arizona      consented     to     the     terms    and

conditions of the Enabling Act, Ariz. Const. art. 10, § 1, art.

20, ¶ 12, and eventually received almost eleven million acres of

State     Trust    Lands       for    the   benefit     of     public        institutions,

Lassen,    385     U.S.    at    460.       Congress    expected        the     grants    to

produce a fund through sale and use of the lands.                             Lassen, 385

U.S. at 463.

¶8           The    state       currently    manages     more     than        9.2   million

acres of State Trust Lands, with approximately 1.4 million acres

in the Little Colorado River Basin and approximately 5.1 million

acres in the Gila River Basin.                   Although adjudication of claims

for waters in those two river systems continues, it is well

known that “the amount of surface water available [in Arizona]

is   insufficient         to    satisfy     all     needs.”       United       States     v.

Superior Court, 144 Ariz. 265, 270, 697 P.2d 658, 663 (1985).

                           II.       PROCEDURAL BACKGROUND

¶9           These    consolidated          cases     originated        in    proceedings

initiated by water rights claimants who filed with the Arizona

State Land Department (ASLD) in the 1970s, under then-existing

statutory    adjudication            procedures.       See    A.R.S.     §§     45-231   to

-245, repealed by 1979 Ariz. Sess. Laws, ch. 139, § 38, eff.

Apr. 24, 1979.            Much has occurred since then.                  Now, a single

water judge presides over both adjudications.                           Ariz. Sup. Ct.


                                             7
Order (Jan. 17, 2002); Ariz. Sup. Ct. Order (Dec. 19, 2000).                      A

special    master     initially    conducts    hearings     and    files    reports

with the court.         A.R.S. § 45-257 (2012).             To date, more than

14,000 and 82,000 claims have been made in the Little Colorado

and Gila River adjudications respectively.1

¶10         The State moved for partial summary judgment in the

Little     Colorado    and      Gila   River   adjudications        to     recognize

federal reserved water rights for State Trust Lands.2                          After

briefing and oral argument, the special master concluded that

federal reserved water rights do not apply to such lands.                        He

submitted    a   report    to    the   superior    court,   which    adopted    the

master’s    findings      and    conclusions      that   support     the    court’s

ruling that the reserved water rights doctrine is inapplicable

to State Trust Lands.            The court therefore denied the State’s


1
     The adjudications’ histories are lengthy and complex.    For
additional factual and procedural background, see Arizona v. San
Carlos Apache Tribe, 463 U.S. 545, 557–59 (1983); In re Rights
to the Use of the Gila River (Gila I), 171 Ariz. 230, 232–33,
830 P.2d 442, 444–45 (1992); Superior Court, 144 Ariz. at 269–
71, 697 P.2d at 662–64; 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) (providing comprehensive
history of western water adjudications); and Joseph M. Feller,
The Adjudication That Ate Arizona Water Law, 49 Ariz. L. Rev.
405, 417-22 (2007) (reviewing litigation within Gila River
adjudication and Silver Creek contest within Little Colorado
adjudication).   The superior court also provides information on
the   adjudications   at   http://www.superiorcourt.maricopa.gov/
SuperiorCourt/GeneralStreamAdjudication.
2
     For clarity, we refer to the State’s motions in the two
cases in the singular.

                                         8
motion and granted the other claimants’ cross-motions on that

ground.

¶11             The   State      sought       interlocutory     review.           We   granted

review     on      this    issue     of       statewide      importance      to    determine

whether Congress impliedly reserved water rights on public land

granted       in   trust    to    the     state.        We   have   jurisdiction         under

Article    6,      Section    5(3)      of     the    Arizona   Constitution           and   the

Special       Procedural         Orders         for     Interlocutory        Appeals         and

Certifications.3

                                     III.      DISCUSSION

A.      Standard of review

¶12             Summary judgment is appropriate if there is no genuine

issue    of     material      fact      and    the    moving    party   is    entitled        to

judgment as a matter of law.                          Ariz. R. Civ. P. 56(c).                 On

appeal, we view the evidence and reasonable inferences therefrom

in the light most favorable to the party opposing the motion.

Andrews v. Blake, 205 Ariz. 236, 240 ¶ 12, 69 P.3d 7, 11 (2003).

We review the superior court’s summary judgment rulings de novo.

In re the Gen. Adjudication of All Rights to Use Water in the

Gila River Sys. & Source (Gila VIII), 223 Ariz. 362, 367 ¶ 6,


3
     Special Order (Sept. 26, 1989) (Gila River adjudication);
Special Order (June 1, 1994) (Little Colorado adjudication);
Order Clarifying the Special Order Filed June 1, 1994 (Mar. 6,
2000); see also Gila I, 171 Ariz. at 233 n.2, 830 P.2d at 445
n.2.



                                                 9
224 P.3d 178, 183 (2010).

B.      Applicable rule of construction

¶13          To determine whether the federal reserved water rights

doctrine applies, we must first construe the federal legislation

granting    trust   land    to    Arizona.       The    State    argues   that   the

superior court erred in narrowly construing the Organic Act and

Enabling    Act   grants.        We   disagree.        Federal   property   grants

generally should be interpreted narrowly because “nothing passes

by mere implication.”            Knoxville Water Co. v. Knoxville, 200

U.S. 22, 33-34 (1906); cf. Kadish v. Ariz. State Land Dep’t, 155

Ariz.     484,    495,   747     P.2d    1183,    1194     (1987)    (recognizing

principle of construing “federal land grants in favor of the

[granting] government”), aff’d sub nom. ASARCO Inc. v. Kadish,

490 U.S. 605 (1989).

¶14          Under a limited exception to that general rule, courts

may liberally construe federal legislation “designed to aid the

common schools of states.”              Wyoming v. United States, 255 U.S.

489, 508 (1921).          For purposes of determining whether a land

grant includes implied rights, this exception applies only when

narrow     construction     of    the    grant    would    result    in   complete

failure of the grant’s purpose or render the land worthless.

See Lyon v. Gila River Indian Cmty., 626 F.3d 1059, 1072-73 (9th

Cir. 2010); Utah v. Andrus (Utah Right-of-Access Case), 486 F.

Supp. 995, 1002 (D. Utah 1979); cf. Andrus, 446 U.S. at 520


                                         10
(reversing      decision    in    which    lower   court    liberally    construed

federal legislation regarding indemnity-in-lieu selection).

¶15          This case raises no such concerns.                 As noted above,

supra ¶ 7, the purpose of State Trust Lands is to produce a fund

from sale and use of the lands to support common schools and

other public institutions designated by Congress.                     Lassen, 385

U.S. at 463; Lyon, 626 F.3d at 1073.                The State has not argued

that, without federal reserved water rights, the State Trust

Lands will become worthless or incapable of producing a fund to

support    their    designated         beneficiaries.       Indeed,   State    Trust

Lands have without such rights produced revenue for a century.

See   ASLD-History,      http://www.land.state.az.us/history.htm;               Land

Comm’n Report at 56-64.

¶16          We agree with other courts that have adopted a rule of

narrow     construction          for     federal   reserved      water       rights,

recognizing        the     doctrine’s       disruptive       effect     in     prior

appropriation jurisdictions.              See United States v. City & Cnty.

of Denver, 656 P.2d 1, 26 (Colo. 1982); New Mexico ex rel. State

Eng’r v. Comm’r of Public Lands (New Mexico Commissioner), 200

P.3d 86, 95 (N.M. App. 2008) (“[I]n recognition of . . . the

potentially substantial and detrimental impact on state rights

in fully appropriated stream systems, courts must construe the

doctrine   of    federal     reserved      water   rights    narrowly.”),      cert.

denied, 129 S. Ct. 2075 (2009).


                                           11
C.     Federal reserved water rights doctrine

¶17           Generally, water rights must be obtained under state

law,   even    on     federal    lands.           Cal.   Or.    Power    Co.    v.      Beaver

Portland Cement Co., 295 U.S. 142, 163-64 (1935).                              In Arizona,

groundwater     is     regulated       by    the    Arizona     Department         of   Water

Resources      and    governed     by       the    doctrine      of     reasonable       use.

A.R.S. § 45-451 et seq. (2012).                    The right to use surface water

and sub-flow is governed by the doctrine of prior appropriation,

§§ 45-141, -251(7), meaning the first to divert water and put it

to beneficial use has priority against later diverters, § 45-

151.    See Ariz. Const. art. 17; In re the Gen. Adjudication of

All Rights to Use Water in the Gila River Sys. & Source (Gila

IV), 198 Ariz. 330, 334 ¶¶ 3-5, 9 P.3d 1069, 1073 (2000).

¶18           Under     certain    circumstances,              however,      the     federal

government     can     reserve    water      rights      on    its    lands,    and     those

rights have priority by operation of federal law.                               In re the

Gen. Adjudication of All Rights to Use Water in the Gila River

Sys. & Source (Gila III), 195 Ariz. 411, 416-17 ¶¶ 13-14, 423

¶ 43, 989 P.2d 739, 744-45, 751 (1999); N.M. Comm’r, 200 P.3d at

94 (citing Navajo Dev. Co. v. Sanderson, 655 P.2d 1374, 1379-80

(Colo. 1982)).         Federal reserved water right holders can claim a

priority      date     based      on    the        establishment        of     a     federal

reservation regardless of whether the claimed water was actually

put to use on that date.                N.M. Comm’r, 200 P.3d at 94 (citing


                                             12
United   States   v.    Jesse,     744       P.2d    491,    493-94    (Colo.     1987)).

“[T]he   quantity      of   a    federal          reserved     water    right     is   not

determined by the amount of water put to beneficial use; rather,

it is determined by the amount of water necessary to carry out

the primary purpose of the reservation.”                     Id.

¶19          The United States Supreme Court first recognized the

doctrine of reserved water rights in Winters v. United States,

concluding that Congress had impliedly reserved rights to Milk

River waters for the Fort Belknap Indian Reservation because

those water rights were necessary to sustain the reservation

community.     207 U.S. 564, 576-77 (1908).                   Reserved water rights

have since been recognized for non-Indian reservations as well.

See, e.g., United States v. New Mexico, 438 U.S. 696, 718 (1978)

(national forest); Cappaert v. United States, 426 U.S. 128, 138

(1976) (national monument); Arizona v. California, 373 U.S. 546,

601   (1963)   (national        recreation        areas     and    wildlife     refuges),

abrogated on other grounds by California v. United States, 438

U.S. 645, 674 (1978).

¶20          The Supreme Court further defined the parameters of

the reserved water rights doctrine in Cappaert, stating that

“when the Federal Government withdraws its land from the public

domain   and   reserves     it    for    a    federal       purpose,”    it     impliedly

reserves appurtenant water “to the extent needed to accomplish

the purpose of the reservation.”                     426 U.S. at 138.             In New


                                             13
Mexico, the Supreme Court clarified that federal reserved water

rights do not extend to a reservation’s secondary purposes.                               438

U.S. at 702.

¶21            To determine whether the federal government impliedly

reserved water rights, the superior court must

        [1] examine the documents reserving the land from the
        public   domain   and    the  underlying   legislation
        authorizing the reservation; [2] determine the precise
        federal purposes to be served by such legislation;
        [3] determine whether water is essential for the
        primary purposes of the reservation; and finally
        [4] determine the precise quantity of water — the
        minimal need as set forth in Cappaert and New Mexico —
        required for such purposes.

In re the Gen. Adjudication of All Rights to Use Water in the

Gila River Sys. & Source (Gila V), 201 Ariz. 307, 313 ¶ 14, 35

P.3d     68,    74     (2001)        (quoting       Montana     ex    rel.       Greely      v.

Confederated Salish & Kootenai Tribes, 712 P.2d 754, 767 (Mont.

1985)); see New Mexico, 438 U.S. at 702, 715-17; Cappaert, 426

U.S. at 141.           This analysis requires review of the pertinent

documents       to     determine          whether     the    land     in    question      was

withdrawn      from     the    public      domain     and    reserved      for    a   federal

purpose,       and,    if     so,    whether        Congress    intended         to   reserve

appurtenant,          unappropriated         water     for     that     purpose.          See

Cappaert, 426 U.S. at 138-39.

D.      Withdrawal and reservation for a federal purpose

¶22            The State argues that the lands Congress granted in

trust    to    the     states       for    institutional       purposes      fall     into    a


                                              14
special    category      of    federal    reservation.        Under   the     State’s

theory, Congress reserved the trust land for the federal purpose

of    supporting    specified      public      institutions    and    provided     for

withdrawal of those lands at the time of survey or, for bulk-

grant    and    indemnity-in-lieu        selections,    when    approved      by   the

Secretary.

¶23            In New Mexico Commissioner, the New Mexico Court of

Appeals     addressed         whether    Congress    had   impliedly         reserved

federal water rights for New Mexico’s trust lands.                     200 P.3d at

95-98.     That court concluded that the relevant language in our

states’ common Organic and Enabling Acts “did not sufficiently

withdraw or reserve lands to create implied federal reserved

water rights” and, therefore, did not satisfy “the threshold

requirements       of   demonstrating       the   existence”    of    such    rights.

Id. at 97.       Although the sections of the Enabling Act providing

for Arizona’s and New Mexico’s land grants are distinct, the

language and context of the separate sections are substantially

similar for purposes of analyzing the State’s reserved water

right claim here.             Compare §§ 6-12, 36 Stat. at 561-65 (New

Mexico), with §§ 24-30, 36 Stat. at 572-76 (Arizona).                        We agree

with the reasoning and conclusion in New Mexico Commissioner.

¶24            The Enabling Act provides:

        [I]n addition to sections sixteen and thirty-six,
        heretofore reserved for the Territory of Arizona,
        sections two and thirty-two in every township . . .


                                          15
       not otherwise appropriated at the date of the passage
       of this Act are hereby granted to the State for the
       support of common schools.

§ 24, 36 Stat. at 572 (emphases added) (carrying forward the

grants of the Organic Act, § 15, 9 Stat. at 452, which also

“reserved”     sections        sixteen       and        thirty-six).           The    term

“withdraw” does not appear in any form within the Enabling Act,

though    it   was      used    in    the        1881       bulk     grant    to    support

universities, 21 Stat. 326, see supra ¶ 3, and that grant was

incorporated in the Enabling Act, § 24, 36 Stat. at 572.

¶25          That Congress uses the word “withdraw” or “reserve” in

a statute granting land does not necessarily mean that the land

is withdrawn or reserved for purposes of public land law.                                S.

Utah Wilderness Alliance v. Bureau of Land Mgmt., 425 F.3d 735,

784-85 (10th Cir. 2005); N.M. Comm’r, 200 P.3d at 96; 2 Charles

F.    Wheatley,   Jr.,    Study      of   Withdrawals              and   Reservations    of

Public Domain Lands App. A-20 (Pub. Land Law Review Comm’n 1969)4

[hereinafter      Wheatley       Report]          (“Mere       use       of   the     terms

‘withdrawal’      and    ‘reservation’           in     a   statute      is   not    always

indicative that the subject lands are to be segregated from the

public domain in the usual sense of a ‘reservation.’                           The intent


4
     The Public Land Law Review Commission was established in
1964 to review the nation’s public land laws, rules, and
regulations, and to make public land policy recommendations.
Act of Sept. 19, 1964, Pub. L. No. 88-606, 78 Stat. 982.  The
Commission ceased operation on December 31, 1970. Act of Dec.
18, 1967, Pub. L. No. 90-213, 81 Stat. 660.

                                            16
of Congress may be quite different.”).

¶26           Withdrawal is the “removal or segregation of the land

from the operation of the general land laws as the initial step

in the dedication of the lands to the predetermined purpose.”

Wheatley Report at App. A-1 to -2.                          Statutes that give a state

the right to obtain land by selection, including indemnity-in-

lieu selection, “should be distinguished from a withdrawal or

reservation”        because      segregation           by    selection         is    designed       to

“protect[] the rights of claimants . . . while the withdrawal

statutes      are        designed     to     retain          the     lands          and     preclude

disposal.”          Wheatley        Report        at    App.       A-21    to        -22.         This

distinction corresponds with the Supreme Court’s suggestion that

withdrawn land may not be conveyed out of federal ownership.

Arizona, 373 U.S. at 598 (“We have no doubt about the power of

the    United     States     under     [the       Constitution]           to    reserve          water

rights     for      its     reservations          and        its    property.”             (emphases

added)).           It     also    corresponds           with        the    Ninth           Circuit’s

suggestion        that    withdrawal        restrains            alienation         of    the    land.

Winters      v.   United     States,        143    F.       740,    748   (9th           Cir.    1906)

(“[W]hen      the        lands   of    the        government          have          been     legally

appropriated or reserved for any purpose, they become severed

from   the    public       lands,     and    . . .          no    subsequent         law    or    sale

should be construed to embrace or operate upon them.” (emphasis

added)), aff’d, 207 U.S. 564 (1908); see also S. Utah Wilderness


                                              17
Alliance, 425 F.3d at 784 (“‘[A] reservation is a tract of land

. . .   which     is     by     public      authority      withdrawn        from    sale     or

settlement.’”)      (quoting          Black’s      Law    Dictionary       1031     (1st    ed.

1891)); 63C Am. Jur. 2d Public Lands § 31 (updated August 2012)

(“Public land is withdrawn when the government withholds an area

of federal land from . . . sale.”).

¶27            Before     the    survey      of    Arizona’s        lands,     no    federal

legislation withdrew State Trust Lands from the public domain

because those lands had not yet been identified or selected, and

they    were     still     available        for    disposition        under       homestead,

mineral, and other public land laws.                      See N.M. Comm’r, 200 P.3d

at 96; Land Comm’n Report at 67.                         The State Trust Lands also

were not withdrawn after the Secretary approved the surveys or

bulk-grant selections because, at that point, the lands were

owned by the state or were subject to a claim by the Territory

that    would    vest     upon     statehood.             Andrus,    446     U.S.    at     523

(recognizing       that       title    to    sections       vested     in     states       upon

survey’s approval); Gonzales v. French, 164 U.S. 338, 344 (1896)

(recognizing that, before statehood, territories could attach a

claim).    Additionally, the Enabling Act authorized the state to

sell the Trust Land, in whole or in part, “to the highest and

best bidder at a public auction.”                  § 28, 36 Stat. at 574.

¶28            Thus, after approval of a survey and selections, State

Trust Lands were neither owned by the federal government nor


                                              18
withheld from disposition.        See Kelly v. Allen, 49 F.2d 876, 878

(9th Cir. 1931) (“[Arizona] is not holding [granted] land as an

instrumentality of the United States, but in its own right . . .

for the schools of the state.”).              No withdrawal occurred with

respect to State Trust Lands.

¶29         Nor were those lands reserved for a federal purpose.

A reservation dedicates land to a specific public use.                S. Utah

Wilderness Alliance, 425 F.3d at 785; Black’s Law Dictionary

1031 (1st ed. 1891).           That use — the reservation’s purpose —

must be federal for the federal reserved water rights doctrine

to apply.    Cappaert, 426 U.S. at 138.

¶30         The State argues that the Trust Lands were granted to

fund congressionally identified institutions, and they therefore

were reserved for a federal purpose, shown by the fact that

Congress    established    a   trust   with   federal   enforcement    power.

See Lassen, 385 U.S. at 461-63 (providing that the purpose of

land grants was to produce funds to support public institutions

and noting that the federal government may enforce the grants’

terms); Kadish, 155 Ariz. at 487, 747 P.2d at 1186 (providing

that the state is trustee of federally granted common school

trust land); Enabling Act, § 28, 36 Stat. at 5775 (authorizing

the federal government to enforce trust requirements).                We are

not persuaded.

¶31         Support   of   the    common    schools   and   other   specified


                                       19
institutions undoubtedly serves the public interest.                                It is not,

however, a federal purpose.                   Cooper v. Roberts, 59 U.S. (18

How.) 173, 181-82 (1855) (“The trusts created by [common school

grants] relate to a subject certainly of universal interest, but

of municipal concern.”); N.M. Comm’r, 200 P.3d at 97 (“Although

we do not deny that the support of common schools is a matter of

national interest, we cannot conclude that it is also a federal

purpose    in    the       context    of    the    implied         federal     water    rights

doctrine.”);        cf.     United    States      v.        Lopez,    514    U.S.    549,    564

(1995)     (recognizing           states’     power          to    regulate     education);

Preiser v. Rodriguez, 411 U.S. 475, 491-92 (1973) (recognizing

states’ power to regulate state prisons); Holden v. Hardy, 169

U.S.   366,     395    (1898)      (recognizing             states’    power    to    regulate

insane asylums, hospitals, and schools for the blind).

¶32           Although         the       Enabling            Act      imposes        federally

enforceable         trust    obligations          on    the        state,    this     retained

oversight     does     not    authorize       the       federal       government       to   make

policy     decisions         on    how     the    beneficiary           institutions        are

administered.          Indeed, “the schools, colleges, and universities

provided      for     in    this     Act    shall           forever    remain       under    the

exclusive control of [Arizona].”                       Enabling Act, § 26, 36 Stat.

at 573-74.

¶33           Nor does the retained oversight indicate the federal

government’s        continued        ownership         of    the     trust   lands     or   its


                                             20
authority to make policy decisions on how the lands are used.

See     N.M.       Comm’r,      200        P.3d      at      98        (rejecting       unsupported

proposition “that by retaining oversight or enforcement power

over    a    state’s       disposition          of     its    trust           lands,   the     federal

government also retains the title to the land” as needed to

reserve          federal    water     rights);          Campana          v.    Ariz.    State       Land

Dep’t,       176     Ariz.      288,       291,        860        P.2d     1341,       1344     (1993)

(recognizing that the state has “great discretion concerning the

disposition of trust lands and has authority to devise detailed

plans       for    the     sale,    lease,        and     use      of     state    land”).           The

Enabling Act provides only a limited federal power to intercede

in the event State Trust Lands are abused.                                       See S. Rep. No.

61-454 at 19 (1910) (“There is nothing . . . especially radical

in [the Enabling Act’s enforcement provision], since at the most

it merely serves to remove any doubt concerning the right and

power of the Executive to take action for the enforcement . . .

whenever a serious violation occurs.”).

¶34               Under    a   narrow       exception             to     the    state’s       autonomy

regarding use of State Trust Land, when a section-in-place grant

is located in a national forest reserve, the “granted sections

shall       be    administered        as    a     part       of    [the]       forest,”       and    the

federal treasury will appropriate a proportionate share of the

gross proceeds of the national forests within Arizona.                                        Enabling

Act, § 24, 36 Stat. at 573; id. § 28, 36 Stat. at 574.                                              That


                                                  21
exception      highlights    that     when       the       purpose     of    non-Indian

reserved land is federal, the United States government retains

control over the reservation’s management.                     Cf. Kelly, 49 F.2d

at 878.      Again, that is not the case with respect to State Trust

Lands.

¶35          Finally, we note that Congress knew how to reserve

land   for    a   federal   purpose       and    effectively         did    so    in   the

Enabling Act when it excluded from selection by the state any

lands valuable for providing water power:

       There is hereby reserved to the United States and
       excepted from the operation of any and all grants made
       or confirmed by this Act to said proposed State all
       land actually or prospectively valuable for the
       development of water powers . . . and no lands so
       reserved and excepted shall be subject to any
       disposition whatsoever.

§ 28, 36 Stat. at 575 (emphases added); see United States v.

Ervien, 246 F. 277, 278 (8th Cir. 1917), aff’d, 251 U.S. 41

(1919).       That   provision    preserved          the    land     for    use   by   the

federal      government     and    precluded          disposition,          unlike     the

relevant provisions here, which conveyed land to the state and

allowed future sales and leases.                See Enabling Act, §§ 24-28, 36

Stat. at 572-74; supra ¶¶ 27-28.                The water power provision also

concerned     unique   land,      while        the   relevant        provisions        here

concerned random and uncertain lands.                  See id. § 29, 36 Stat. at

575 (providing that bulk-grant and in-lieu selections must be

from “unreserved, unappropriated, and nonmineral public lands”);


                                          22
Andrus, 446 U.S. at 523 (discussing section-in-place grants as

“random     cross    section[s]          of    the     public       land”).       Thus,       if

Congress    had     wanted       to    withdraw       and    reserve       for   a    federal

purpose the lands it granted to the state, it could have done

so.     See N.M. Comm’r, 200 P.3d at 97.

¶36          For the foregoing reasons, we conclude that the State

Trust    Lands    were     not    withdrawn          and    reserved       for   a    federal

purpose.      Thus,      these        lands    cannot       include    federal       reserved

water rights.

E.      Congressional intent

¶37          Even    had    the       State    Trust       Lands    been    withdrawn        and

reserved, no evidence suggests that Congress intended to reserve

water    rights     on   those        lands.        The     State    contends        that    the

federal government’s relationship to the states is akin to its

relationship        to     the    Indian        tribes       and     posits      that       this

relationship compels a finding that Congress intended to reserve

water for State Trust Land development.                            We disagree.         Unlike

reservations for the Indian tribes, land grants to the states

are not the product of negotiated agreements or treaties.                                    See

Winters, 207 U.S. at 575-76.                  Nor does the State cite authority

for resolving any ambiguities in state land grants “from the

standpoint of” the states.               See id. at 576; cf. United States v.

Winans, 198 U.S. 371, 381 (1905) (indicating that a “treaty was

not a grant of rights to the Indians, but a grant of right from


                                               23
them”).

¶38          The    State     also    contends      that       Congress          intended    to

reserve water rights because it knew of the region’s aridity and

the need for water to make productive use of the land.                                       To

support     this     contention,       the       State        quotes       Senator       Daniel

Webster’s observation that throughout the region, “there is one

fatal want of water.”            Cong. Globe, 31st Cong., 1st Sess. 860

(1850).     But Senator Webster was speaking about Texas boundaries

as he advocated for establishing a territorial border to prevent

Texas     from     claiming    land    that        could       help        the   New     Mexico

Territory      secure   the    population         needed       to    achieve        statehood.

Id.     Notably, the goal of increasing the Territory’s population

would also have been supported by ensuring that the region’s

scarce    water     supply    was     obtainable         by    settlers          rather    than

reserved.

¶39          To enhance the value of its land grant to Arizona, the

federal     government       increased       the    number          of     school      section-

in−place grants from two to four sections per township.                                     See

Enabling Act, § 24, 36 Stat. at 572; N.M. Comm’r, 200 P.3d at

98-99; Lassen, 385 U.S. at 463 n.7; cf. H.R. Rep. No. 52-737, at

10    (1892)     (providing,     in    an        unenacted          bill     preceding      the

Enabling Act, that granting Arizona four sections per township

would not “more than equal in value the land aid Congress has

given the other States” that received fewer sections).                                 Thus, we


                                            24
conclude that Congress intended to compensate for the relatively

low value of land granted to Arizona by augmenting the amount of

land granted, not by reserving federal water rights for those

lands.    See N.M. Comm’r, 200 P.3d at 98-99.

                              IV.   CONCLUSION

¶40         For the reasons stated above, we find no withdrawal,

no    reservation   for   a   federal    purpose,   and   no   congressional

intent to reserve water rights for the State Trust Lands.5                We

therefore affirm the judgment of the superior court.



                              _____________________________________
                              A. John Pelander, Justice


CONCURRING:


_____________________________________
Rebecca White Berch, Chief Justice


_____________________________________
Robert M. Brutinel, Justice

5
     Our conclusion that federal reserved water rights do not
exist for State Trust Lands is independent of, and thus not
based on, the 1877 Desert Land Act to which the special master,
superior court, and several parties refer. The superior court’s
findings and conclusions regarding that Act, however, are
consistent with this opinion. See Ickes v. Fox, 300 U.S. 82, 95
(1937) (“[B]y the Desert Land Act of 1877 (c. 107, 19 Stat.
377), if not before, Congress had severed the land and waters
constituting the public domain and established the rule that for
the future the lands should be patented separately. Acquisition
of the government title to a parcel of land was not to carry
with it a water right.”).



                                        25
_____________________________________
Lawrence F. Winthrop, Judge*




*
     Pursuant  to   Article   6,  Section   3  of   the  Arizona
Constitution, the Honorable Lawrence F. Winthrop, Chief Judge of
the Court of Appeals, Division One, was designated to sit in
this matter.

                               26
