                    SUPREME COURT OF ARIZONA
                             En Banc

IN RE THE GENERAL ADJUDICATION    )    Arizona Supreme Court
OF ALL RIGHTS TO USE WATER IN     )    No. WC-07-0002-IR
THE GILA RIVER SYSTEM AND SOURCE  )
                                  )    Maricopa County
                                  )    Superior Court
                                  )    No. W-1
                                  )        W-2
                                  )        W-3
                                  )        W-4
                                  )    (Consolidated Cases)
                                  )
                                  )    Contested Case No. W1-208
                                  )
                                  )    O P I N I O N
__________________________________)

 Interlocutory Appeal from the Superior Court in Maricopa County
           The Honorable Eddward Ballinger, Jr., Judge

                            Affirmed
________________________________________________________________

SACKS TIERNEY, P.A.                                      Scottsdale
     By   Judith M. Dworkin
          Marvin S. Cohen
Attorneys for City of Tucson

SOMACH SIMMONS & DUNN                              Paradise Valley
     By   Robert B. Hoffman
Attorneys for Farmers Investment Co.
and Farmers Water Co. (FICO)

THE SPARKS LAW FIRM, P.C.                                Scottsdale
     By   Joe P. Sparks
          Susan B. Montgomery
          Robyn L. Interpreter
Attorneys for Pascua Yaqui Tribe and Intervenors
San Carlos Apache Tribe, Yavapai-Apache Nation and
Tonto Apache Tribe

JONATHAN L. JANTZEN, TOHONO O’ODHAM NATION                     Sells
ACTING ATTORNEY GENERAL
     By   Jonathan L. Jantzen, Acting Attorney General
Attorneys for Tohono O’Odham Nation



                                   1
RONALD J. TENPAS, ACTING ASSISTANT                Washington, DC
UNITED STATES ATTORNEY GENERAL
MICHAEL B. MUKASEY,
UNITED STATES ATTORNEY GENERAL
     By   John L. Smeltzer
          F. Patrick Barry
Attorneys for the Department of Justice,
United States of America

RYLEY CARLOCK & APPLEWHITE, P.A.                         Phoenix
     By   L. William Staudenmaier, III
Attorneys for Arizona Public Service Company

SALMON LEWIS & WELDON, P.L.C.                            Phoenix
     By   John B. Weldon, Jr.
          Lisa M. McKnight
Attorneys for Salt River Valley Water Users’ Association
and Salt River Project Agricultural Improvement and
Power District

Jennifer K. Giff                                         Sacaton

And

Rodney B. Lewis                                          Sacaton

And

John T. Hestand                                         Chandler
Timothy L. Pierson
Ruth E. Koester
Ann Marie Chischilly

And

AKIN GUMP STRAUSS HAUER & FELD, L.L.P.            Washington, DC
     By   Donald R. Pongrace
Attorneys for Gila River Indian Community
________________________________________________________________

R Y A N, Justice




                                2
                                   I

                                   A

¶1        This   case   arises   from   the   ongoing   adjudication   of

rights to the use of Gila River water and the impact of recent

federal legislation facilitating the resolution of tribal water

claims subject to the adjudication.1

¶2        In 2004, Congress passed the Arizona Water Settlements

Act (“AWSA”), Pub. L. No. 108-451, 118 Stat. 3478 (2004).         Title

III of the AWSA authorizes the settlement of the federal water

rights claims of the Tohono O’odham Nation (“Nation”).2           Under



1
     For an outline of the facts and procedural history of this
ongoing adjudication, see In re the General Adjudication of All
Rights to Use Water in the Gila River System and Source, 195
Ariz. 411, 414, ¶ 5, 989 P.2d 739, 742 (1999) (“Gila River
III”); San Carlos Apache Tribe v. Superior Court ex rel. County
of Maricopa, 193 Ariz. 195, 202, ¶ 3, 972 P.2d 179, 186 (1999);
In re Rights to the Use of the Gila River, 171 Ariz. 230, 232-
33, 830 P.2d 442, 444-45 (1992) (“Gila River I”).
2
     The Arizona Department of Water Resources’ Technical
Assessment of the Tohono O’odham Nation Water Rights Settlement,
(“assessment”) describes the geographic scope of the agreement
as follows:

     The Settlement Agreement encompasses only those lands
     of the Nation that are within the “Tucson Management
     Area,” which is a geographic area comprised of the
     Tucson Active Management Area . . . , the Santa Cruz
     Active Management Area, and that portion of the Upper
     Santa Cruz Basin not within either of the Active
     Management   Areas.     Included  within  the  Tucson
     Management Area are the entire San Xavier Reservation
     and the eastern portion of the Schuk Toak District of
     the Sells Papago Reservation.



                                   3
the auspices of the AWSA, the Nation, the United States, the

City of Tucson, Farmers Investment Company (“FICO”), and ASARCO,

Inc.    (“the       settling     parties”)         sought        entry     of     judgment

confirming      a    settlement     agreement        among       them.          Under   the

settlement agreement, the Nation agreed to give up its claim to

federally       reserved        groundwater         rights        on     the      Nation’s

reservation in return for commitments from the United States to

provide Colorado River water through the Central Arizona Project

(“CAP”),    and     agreements     from      the   City     of    Tucson,       FICO,   and

ASARCO to limit groundwater pumping and compensate the Nation

for injuries caused by pumping.

¶3           The    AWSA   is    part   of    a    broader       effort    by     federal,

state, and tribal entities to resolve water rights issues.                               As

such, the AWSA contemplates more than the settlement agreement.

For    example,     encouraged     by   Congress,      the       Arizona       Legislature

adopted    legislation      designed      to       protect       groundwater       in   and



Assessment at 1-1 to 1-2, available at http://www.azwater.gov/
dwr/content/Hot_Topics/AZ_Water_Settlements/SAWRSA/TohonoOodham
NationWaterRightsSettlement.pdf.       Both    the   San   Xavier
Reservation and the Schuk Toak District are part of the Nation’s
lands. Id. These two areas comprise all of the Nation’s lands
within the upper basin of the Santa Cruz River, a Gila River
Tributary. The Tucson Management Area is defined in the AWSA to
mean the Tucson Active Management Area, the Santa Cruz Active
Management Area, and that part of the upper Santa Cruz River
Basin not within either management area.     AWSA § 303(48).    An
Active Management Area is a geographic area designated under the
Arizona Groundwater Code as requiring active groundwater
management. See Ariz. Rev. Stat. (“A.R.S.”) §§ 45-411, -411.02,
-411.03 (2003).


                                          4
around the San Xavier Reservation near Tucson.                   See 2005 Ariz.

Sess. Laws, ch. 143 (1st Reg. Sess.) (codified at A.R.S. §§ 45-

2701   to   –2702,    45-2711   to    -2712    (Supp.   2007))     (“Groundwater

Protection Program”).        Thus, the AWSA recognizes a comprehensive

effort to both satisfy the Nation’s claims and protect water

resources.

¶4           The   timeliness    of    judicial    approval       and   entry    of

judgment, however, is critical.               For Title III of the AWSA to

take effect, the Secretary of the Interior must publish certain

findings by December 31, 2007, including that “the judgment and

decree attached to the Tohono O'odham settlement agreement . . .

has been approved by the [s]tate court having jurisdiction over

the Gila River adjudication proceedings, and that judgment and

decree have become final and nonappealable.”                   AWSA § 302(b)(5),

(c).     Likewise, in order for the Arizona legislation to become

effective, the same finding must be made.                      2005 Ariz. Sess.

Laws, ch. 143, § 15 (requiring finding on or before December 31,

2010).

                                        B

¶5           The settling parties filed an application for approval

of the Tohono O’odham Nation settlement with the Gila River

adjudication court in July 2006.               The adjudication court then

requested     that    the    Arizona    Department        of    Water   Resources

(“ADWR”)    prepare    a    factual    and    technical    assessment     of    the



                                        5
proposed    settlement.            In     October     2006,      ADWR    submitted        its

assessment.

¶6           The Pascua Yaqui Tribe (“Tribe”)3 filed objections to

the   judgment     and     decree    in       December      2006.   A   hearing      on   the

objections    took        place    in     April      2007.       In     June   2007,      the

adjudication court summarily disposed of the Tribe’s objections.

The court denied the Tribe’s motion for reconsideration in July

2007 and entered the judgment and decree along with a separate

order detailing its reasoning.

¶7           Following the adjudication court’s rejection of the

Tribe’s    objections,       both       the    settling      parties     and   the     Tribe

sought     interlocutory          review       in    this     Court.       See     Special

Procedural        Order     providing          for    Interlocutory        Appeals        and

Certifications (Sept. 26, 1989) (“Interlocutory Appeals Order”).

Because of the time constraints imposed by the AWSA, this Court

set an expedited briefing schedule and held oral argument on

November 20, 2007.

¶8           In    accordance       with       §§    (B)(3)      and    (B)(4)    of      the

Interlocutory Appeals Order, we accept interlocutory review of

this case because it is in the interest of justice and will save

time,    expense,     and     resources.             We   have      jurisdiction       under

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


3
     The Tribe’s reservation borders the north side of the San
Xavier Reservation.


                                               6
                                           II

¶9            Recognizing      the       importance        of      facilitating       the

resolution of tribal claims, on May 16, 1991, this Court issued

a Special Procedural Order providing for the Approval of Federal

Water   Rights      Settlements,     Including          Those     of   Indian    Tribes

(“Special Order” or “Special Procedural Order”).

¶10           The   Special      Order     does     four     things.         First,   it

establishes     the     circumstances       under    which        special    settlement

proceedings     can     be   initiated.         Special      Order     §    (A)(1)-(5).

Second, it sets forth the process by which parties may apply to

the   court    to     initiate    the     special       proceedings        and   certain

notices that must issue.           Id. §§ (B)(1)-(3), (E)(1)-(3).                 Third,

the Special Order allows other claimants to object to court

approval of the settlement.                Id. § (C)(1)-(4).                Fourth, the

Special Order provides for resolution of objections and approval

of the settlement by the adjudication court.                      Id. § (D)(1)-(7).

¶11           Through    the     Special       Order,      this    Court     sought   to

balance the rights of Indian tribes to seek settlement of their

claims against the rights of other claimants.                       Accordingly, the

Special Order provides claimants4 with the opportunity to object


4
     The parties dispute whether the Tribe is properly a
claimant and, thus, whether it has “standing,” under the terms
of the Special Order, to object to the settlement agreement and
judgment and decree. The adjudication court expressed “serious


                                           7
if the settlement “would cause material injury to the objector’s

claimed water right,” the conditions for approval of such a

settlement    have   not    been   met,    or    when   “the   water   rights

established in the settlement agreement . . . are more extensive

than the Indian tribe . . . would have been able to establish at

trial.”    Id. § (C)(1)(a)-(c).

¶12         The   Special     Order    further      provides    that    after

resolution of objections, the adjudication court shall approve a

settlement if there is a reasonable basis to conclude that the

water rights of the settling Indian tribe are no more extensive

than would be proved at trial, the objector is not bound by the

settlement and may pursue its own remedies against the settling

tribe, and the settlement agreement has been reached in good

faith.    Id. § (D)(6)(a)-(c).

¶13         The   balance   struck    by   the   Special   Order   seeks   to

prevent any tribe from using a settlement to gain additional

rights to water while protecting other parties whose own rights

would be injured by the settlement.               At the same time, the



doubt” about “whether the [] Tribe can be properly considered a
claimant . . . .” Minute Entry, June 4, 2007, at 2.
Nevertheless, the court ruled that “[e]ven if the [] Tribe is
viewed as having standing to object, the Court must grant
summary disposition . . . because the Proposed Settlement
Agreement and proposed judgment cannot be used to affect the []
Tribe’s water rights, claims, or entitlements to water.”    Id.
Without deciding this issue, we assume for purposes of this
opinion that the Tribe can act as a claimant.



                                      8
Special Order provides for judicial approval when the settling

tribe has taken steps to preserve other claimants’ rights and

remedies.    Put simply, the expectation under the Special Order

is that a settlement will be approved if the settling tribe is

no better off than it would be after the final adjudication of

all claims, and the settlement preserves the remedies of the

non-settling claimants.       To prevent approval, an objecting party

must show that its claimed water right would suffer “material

injury.”

¶14         The Tribe did not object to the settlement below on

the grounds that the Nation received rights to more water than

those to which it is entitled.             Rather, the Tribe claimed that

the settlement agreement causes material injury to its rights.5

The adjudication court rejected the objections, holding that the

Tribe “stands in the same position whether or not the Proposed

Settlement Agreement is approved . . . .”           Minute Entry, June 4,

2007, at 2.     The Tribe appeals on numerous grounds.             However,

because the settlement determines only the water rights of the

Nation, does not provide the Nation with any federal reserved

rights,    restricts   the   amounts   of    groundwater   the   Nation   may


5
     Although the Tribe did object that the conditions required
by this Court to initiate the proceedings had not been met, its
argument that the adjudication court erred in dismissing that
objection is waived. See Webster v. Culbertson, 158 Ariz. 159,
163, 761 P.2d 1063, 1067 (1988) (issue not raised in opening
brief is waived).


                                       9
pump, and expressly reserves all rights and claims of the Tribe,

we conclude that none of the Tribe’s claims has merit.

                                     III

                                         A

¶15        The     Tribe   first   argues         that,    notwithstanding     the

Special    Order     limiting      the       adjudication       court     to   the

consideration of “material injuries,” the adjudication court has

an “inherent duty” to consider any arguments challenging the

legality   and     constitutionality         of   the     settlement    agreement,

regardless of whether an objector shows a material injury.6



6
     The San Carlos Apache Tribe, Yavapai-Apache Nation, and
Tonto Apache Tribe (“the Apache Tribes”) join the Tribe’s
argument here because the adjudication court relied on its order
in Contested Case No. W1-207, the Gila River settlement, in
which it stated that the Special Order “limits [the court’s]
inquiry   in  connection   with  considering  approval   of  the
Settlement Agreement to the matters explicitly set forth in the
Order.” See Minute Entry, January 23, 2007. In this proceeding
(W1-208), the adjudication court issued an order stating that
the “limitations” in the Special Order, as previously determined
in W1-207, would “restrict the Court’s inquiry in connection
with considering approval of the [Nation’s] . . . Settlement.”
Minute Entry, March 20, 2007.

The Apache Tribes and the Lower Gila River Water Users had
previously filed a petition for interlocutory review in W1-207.
This Court has not acted on that petition.     The adjudication
court entered a judgment and decree on September 13, 2007,
approving the Gila River settlement.

Because the Apache Tribes’ objection to the adjudication court’s
interpretation of the Special Order mirrors the one raised here,
they sought and were granted leave to intervene.       Likewise,
because the issue in W1-208 is the same as the one in W1-207,
the Gila River Indian Community and the Salt River Project were


                                     10
¶16           Indeed, the Tribe raised numerous objections to the

legality and constitutionality of the settlement agreement.7                             The

Tribe, however, concedes that these arguments are separate from

any objection based on material injury caused by the agreement.

Thus,   the    Tribe    asks    us    to    hold    that    the       Special    Order    is

invalid insofar as it limits the adjudication court’s obligation

to    consider    objections        that    do     not    turn     on   the     settlement

agreement itself.8

¶17           The “constitutional” objections raised by the Tribe

are   issues     of    law,    some   of    which        involve      separate    parties

altogether.       For example, the Tribe challenges the Groundwater

Protection       Program      and     the    Secretary           of     the     Interior’s

negotiation       of    CAP     contracts,          issues       well     outside        the

adjudication court’s purview.               As the adjudication court found,

these arguments do not depend on the settlement agreement and

fall outside the “narrow scope of . . . review . . . mandated by




permitted   to  intervene   and   file   briefs                         supporting       the
adjudication court’s resolution of this issue.
7
     These included whether the Groundwater Protection Program
improperly delegated authority to the Nation and whether
subsequent modifications of the Tribe’s own contract with the
Secretary for the delivery of CAP water violated the state and
federal constitutions.
8
     To the extent that our order in the separate Little
Colorado Adjudication differs from the instant Special Order, we
decline to revisit the Special Order, now midway through its
second decade in effect.      Because the scope of the Little


                                            11
the [Special Order].”           See id.      They can be addressed at a later

date without any injury to the Tribe from delay.

¶18         Moreover, the Tribe’s constitutional challenge to the

Groundwater Protection Program misconstrues its legal effect.

The   program    sets    technical       standards     for   defining     when   non-

exempt wells may be drilled in a narrow perimeter around the

Nation’s lands and directs ADWR to enforce those standards.9                       See

A.R.S. § 45-2711.          Although the Nation may object to ADWR’s

decision to permit new wells in the area encompassed by the

settlement agreement, it cannot veto ADWR’s decision to permit

new   wells.      Id. §        45-2712.          Moreover,   the   program     enacts

standards      where     none     were      present    before,      as   the     State

Groundwater      Code      does       not        otherwise   apply       to    Indian

reservations.          Therefore,     the    Tribe     has   suffered     no   injury

because of the adoption of the program.

¶19         Contrary      to    the   Tribe’s       assertion,     the   Groundwater

Protection Program does not “invade[] the exclusive province of

the Court . . . to adjudicate and protect the [Tribe’s water

rights].”         Because the settlement agreement, in compliance

with § D(6)(b) of the Special Order, does not bind the Tribe, if



Colorado Adjudication’s order is not before us, we do not speak
to its provisions.
9
     Wells that pump fewer than thirty-five gallons per minute
and are used for limited purposes are exempt from the permitting
requirements. A.R.S. § 45-454.



                                            12
the adjudication court determines that new wells permitted under

the     Groundwater      Protection             Program     would      harm    the       Tribe’s

federal       reserved     groundwater            rights,        the   court       can     grant

appropriate relief.            See A.R.S. § 45-2702.

¶20            The Tribe’s constitutional claims with respect to its

CAP contract are founded on a belief that the settlement would

impermissibly         impair       its    contract        rights.      These    claims       are

meritless.        Title        I    of    the    AWSA     provides     that    pre-existing

agreements or rights to the use of Colorado River water are not

affected.        AWSA § 108.              If the United States should at some

future point breach its contract with the Tribe, the Tribe is of

course free at that time to seek an appropriate remedy.

                                                  B

¶21            The Tribe next contends that the adjudication court

unconstitutionally prevented it from proving material harm in

the proceedings below.                   The essence of the Tribe’s argument is

that    the    settlement          agreement      materially        injures    the       Tribe’s

water     rights,      specifically             its   groundwater         rights     and    its

surface       water   rights        under       federal    law,     and   “deplete[s]        and

deprive[s]      the    Tribe        of    its    federal     reserved      water     rights,”

violating the Tribe’s due process rights.

¶22            This    argument          fails     for     several     reasons.           First,

because the settlement is not binding on the Tribe, it remains

free    to    assert     its       rights       against    the    settling     parties      and



                                                 13
others.          In compliance with the Special Order, the Nation’s

settlement        prohibits             the    agreement          from     being   interpreted            to

affect      the       rights       of    any       other     claimant.            Special      Order       §

(D)(6)(b).            Indeed, the AWSA requires the same.                            AWSA § 305(e)

(“Nothing in this section authorizes the Secretary to acquire or

otherwise affect the water rights of any Indian Tribe.”).                                               Such

claimants retain all remedies available before approval of the

settlement        necessary             to    protect       their        rights    in    the       general

adjudication.            Thus, the settlement agreement and judgment and

decree do not and, indeed, cannot affect the Tribe’s rights or

materially injure the Tribe.                         See Martin v. Wilks, 490 U.S. 755,

762 (1989) (“A judgment or decree among parties to a lawsuit

resolves issues as among them, but it does not conclude the

rights      of    strangers             to     those       proceedings.”),          superseded            by

statute on other grounds, 42 U.S.C. § 2000e-2(n); City of Warren

v.    City       of     Detroit,             495     F.3d        282,    287    (6th     Cir.        2007)

(“[P]arties who choose to resolve litigation through settlement

may   not    dispose          of    the       claims        of    a     third   party    .     .    .   .”)

(quoting Local No. 93, Int’l Ass’n of Firefighters v. City of

Cleveland, 478 U.S. 501, 529 (1986)).

¶23              Moreover, as a legal matter, nothing in the settlement

leaves      the       Tribe    any           worse    off        with     regard    to       the     water

available to satisfy its claims than it is now.                                     Section 312(d)

of the AWSA provides in part that “[t]he Nation and the United



                                                      14
States as Trustee . . . shall have the right to assert any

claims   granted        by   a    State     law     implementing       the     groundwater

protection      program      described      in      paragraph    8.8     of    the    Tohono

O’odham settlement agreement.”                    In turn, paragraph 8.8 of the

Nation’s settlement agreement requires the settling parties “to

support the enactment of legislation by the State that would

implement the groundwater protection program for the San Xavier

Reservation.”

¶24            As noted above, see supra ¶ 3, the legislature did

enact    the    Groundwater        Protection        Program     that    will       go   into

effect once this settlement is final and nonappealable and has

been published in the Federal Register.                        See 2005 Ariz. Sess.

Laws, ch. 143, § 15 (citing AWSA § 302(c)).                            This program is

intended    to    control        the   amount       of     groundwater     pumping       that

occurs   near     the    Tribe’s       land.        See,    e.g.,    A.R.S.     §    45-2702

(providing that the adjudication court has jurisdiction over,

among other things, the Groundwater Protection Program).                                 Thus,

the   Tribe’s     claims     of    injury      are       premature   and      speculative.

Moreover, because the program provides limits on pumping that

did not exist before, it cannot by its own terms put the Tribe

in a situation worse than its current one.

¶25            The Tribe asserts that a prior decision of this Court,

San Carlos Apache Tribe v. Superior Court ex rel. County of

Maricopa,      holds    that      because      of    the    finite   nature      of      water



                                             15
resources, a court must look behind the settlement to determine

if the agreement “may affect the availability of water” for

other claimants.          193 Ariz. 195, 213, ¶ 43, 972 P.2d 179, 197

(1999).      The issue in San Carlos Apache Tribe, however, was

whether, by requiring certain legal conclusions, the legislature

violated the strict separation of powers mandated by the Arizona

Constitution.       Id.    Here, in contrast, there is no separation of

powers issue.10

¶26          Also, the Tribe argues that this Court recognizes a

violation of due process when a claimant is required to wait

until      injury     occurs       before    pursuing     remedies    in    the

adjudication.       See id., 193 Ariz. at 212, ¶ 39, 972 P.2d at 196.

However,     in     San   Carlos    Apache   Tribe,     the   legislature   had


10
     The Tribe misunderstands the import of other decisions by
this Court as well. For example, the Tribe suggests that under
our holding in In Re the General Adjudication of All Rights to
Use Water in the Gila River System and Source, 212 Ariz. 64, 82,
¶ 67, 127 P.3d 882, 900 (2006), a party challenging water rights
established in a decree must return to the originating court to
challenge the decree.     Our holding in that case, however,
addressed the deference owed to the originating court when a
party argued its entitlement to relief from an apparently
binding decree. Id.

Similarly, the Tribe recognizes that Arizona law holds water
rights are property rights and that notions of notice and an
opportunity to be heard attach, but this observation is beside
the point. See Gila River I, 171 Ariz. at 235-36, 830 P.2d at
447-48.   The Tribe had sufficient notice and opportunity to be
heard.   The opportunity to be heard is not an opportunity to
receive a particular result.     And, in any event, the Tribe’s
water rights are not affected by the settlement agreement.



                                        16
dictated the summary adjudication of “de minimis use” without

judicial     consideration              of     the     impact       on     any     individual

watershed.        Id. at ¶ 38.              But, in compliance with the terms of

the    Special     Order,        see    §    (D)(6)(a),       the    quantity       of    water

received by the Nation under the settlement is below the lowest

amount of water the Nation might have succeeded in proving at

trial.       As    a     matter        of    law,    therefore,          the    Tribe    cannot

demonstrate material injury to its water rights.

¶27          Because the Tribe is not bound by the judgment and

decree approving the settlement, and the Nation will not receive

more   water      than      it   could       have    proved   at    trial,       the    Tribe’s

argument that the settlement violates its due process rights is

unfounded.        See Mitchell v. W.T. Grant Co., 416 U.S. 600, 611

(1974) (postponement of judicial inquiry not an inherent denial

of due process).

                                                C

¶28          The Tribe argues that these proceedings may violate

federal    law      by       permitting         a    settlement          that    strips     the

adjudication of its “comprehensive” nature.

¶29          To be sure, the McCarran Amendment, 43 U.S.C. § 666,

is crucial to the operation of state water adjudications.                                 Under

the amendment, the United States consents to waive its sovereign

immunity     and       be    bound      by     state    court       decisions      in     water

adjudications.           Id.     The United States Supreme Court has held



                                                17
under the amendment that federal courts should defer to state

court   adjudications,      effectively        forcing    federally      recognized

tribes into the adjudication process.              See Arizona v. San Carlos

Apache Tribe, 463 U.S. 545, 569 (1983) (“The McCarran Amendment

. . . allows and encourages state courts to undertake the task

of    quantifying    Indian       water        rights     in     the     course      of

comprehensive    water    adjudications.”).             Although       the   McCarran

Amendment’s purpose is to limit litigation and confusion over

property   rights,    id.,    the   Tribe       contends       that    allowing     the

settlement here to proceed would strip the adjudication of its

comprehensive    nature     and   jeopardize       any    submission         to   state

court jurisdiction by the United States.                   But interpreting 43

U.S.C. § 666 in this manner would make it impossible for any

settlement to occur.         The McCarran Amendment and the related

Supreme    Court     case     law    emphasize          the      resolution,        not

exacerbation, of water rights conflicts.

                                         D

¶30        Next, the Tribe insists that the adjudication court

should have stayed the proceedings until the ADWR assessment was

revised    to   comply    with    that        court’s    order    requesting        the

assessment.     But nothing in the court’s order expressly required

consideration of the impact of the settlement on the Tribe.

Further, a technical assessment of the Tribe’s rights is not

relevant to determining material injury to the Tribe because it



                                         18
is not bound by the settlement, and the settlement does not give

the   Nation      any    rights   that       it    does   not   already    hold.     The

Tribe’s argument envisions a quantification of its rights as a

precondition to a settlement of the Nation’s rights.                            If that

were the case, it would nearly be impossible for settlements

such as this one to be reached.

                                              E

¶31          The Tribe asserts that, by including in the judgment

and   decree      a     reference      to    the     Nation’s    CAP    contract,    the

adjudication court acted outside its jurisdiction.                        The judgment

and decree entered by the adjudication court provides that under

the terms of the settlement agreement, the Nation is entitled to

79,000 acre feet per year of water within the Tucson Active

Management Area.              The judgment and decree stated that 66,000

acre feet per year of this water “shall” be obtained through a

CAP contract.

¶32          We       agree    that     by    describing        the    terms    of   the

settlement it was approving, the adjudication court could not

adjudicate        rights      beyond    its        jurisdiction.        See    Maricopa-

Stanfield Irrigation & Drainage Dist. v. Robertson (Smith), 211

Ariz. 485, 494, ¶ 57, 123 P.3d 1122, 1131 (2005).                         Congress, not

the adjudication court, authorized amendments to the Nation’s

CAP contract in section 309(g) of the AWSA.                           The court merely

stated the operative provisions of the agreement and the CAP



                                              19
contract resulting from it.

                                                  F

¶33          Finally,          the        Tribe         claims        that,         because         the

adjudication          court    relied        on        an    allegedly           incomplete     ADWR

assessment and did not hold an evidentiary hearing as required

by § (D)(6) of the Special Order, the settling parties did not

meet    their    burden        of    proof      under        the   Special         Order.       This

contention fails on several grounds.

¶34          First, the Special Order leaves to the discretion of

the adjudication court whether to have an assessment prepared.

Special      Order      §     (B)(3)(f).               Second,     chapter          7    of   ADWR’s

assessment      addressed           the   probable          impacts     of       the    settlement,

including impacts on water resources, on other claimants in the

Gila River adjudication, and on groundwater rights.

¶35          Third, § (D)(5) of the Special Order provides that

“[u]pon completion of all hearings on objections, . . . the

general      adjudication            court      shall         enter     a        judgment      either

approving       the    stipulation         and        adjudicating          the     Indian     water

rights or water rights for other federal reservation[s] as set

forth   in    the      stipulation         or     declining        to       do    so.”        Section

(D)(6)(a)     requires         the    court       to        approve   a     settlement         if    it

determines “by a preponderance of the evidence” that the water

rights “established in the settlement agreement . . . are no

more extensive” than could be proved at trial.                                         This section



                                                  20
further provides that “[i]n making this determination, the court

may   consider      in   addition       to    other    evidence       offered,      the

statement    of    claimant     filed    by    the    Indian      tribe    or   federal

agency and all supporting documentation.”                  Id.

¶36         Here, the adjudication court appropriately considered

the Statement of Claimant filed by the United States on behalf

of the Nation and the supporting assessment by ADWR regarding

the range of water rights the Nation could claim.                         As discussed

above, see supra ¶ 26, the range of water rights set forth in

these documents was greater than the rights granted under the

Nation’s settlement.          Consequently, the adjudication court did

not   err   in    determining    that    the    settling         parties    met   their

burden under the Special Order and that an evidentiary hearing

was unnecessary.

                                         IV

¶37         For    the   forgoing       reasons,      we   accept     interlocutory

review and affirm the judgment and decree of the adjudication

court in its entirety.



                                _______________________________________
                                Michael D. Ryan, Justice

CONCURRING:


_______________________________________
Ruth V. McGregor, Chief Justice




                                         21
_______________________________________
Rebecca White Berch, Vice Chief Justice


_______________________________________
Andrew D. Hurwitz, Justice


_______________________________________
A. John Pelander, III, Judge*

* Justice W. Scott Bales has recused himself from this case.
Pursuant to Article 6, Section 3 of the Arizona Constitution,
the Honorable A. John Pelander, III, Judge of the Arizona Court
of Appeals, Division Two, was designated to sit in this matter.




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