Re Water Rights to gila/little Colorado

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.

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