In Re: Gila River System

SUPREME COURT OF ARIZONA
En Banc

IN RE )
)
THE GENERAL ADJUDICATION OF ALL ) Arizona Supreme Court
RIGHTS TO USE WATER IN THE GILA ) Nos. WC-07-0001-IR and
RIVER SYSTEM AND SOURCE ) WC-07-0003-IR
)
) Maricopa County
) Superior Court
) Nos. W-1, W-2, W-3, W-4
) (Consolidated)
)
) (Contested Case
) No. W1-207)
)
) O P I N I O N
_________________________________ )

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

AFFIRMED
________________________________________________________________

LAW OFFICE OF DOUGLAS C. NELSON, P.C. Phoenix
By Douglas C. Nelson
Attorney for Lower Gila Water Users, Town of Gila Bend,
Arlington Canal Company, Enterprise Ranch, Paloma Irrigation
& Drainage District and Various Individuals

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

MONTGOMERY & INTERPRETER, P.L.C. Phoenix
By Susan B. Montgomery
Robyn L. Interpreter
Attorneys for Yavapai-Apache Nation

GILA RIVER INDIAN COMMUNITY Sacaton
By Jennifer K. Giff
Rodney B. Lewis
Timothy L. Pierson
 Ruth E. Koester
Ann Marie Chischilly
John T. Hestand Chandler

And

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

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

SALMON, LEWIS & WELDON, P.L.C. Phoenix
By Riney B. Salmon, II
Attorneys for the San Carlos Irrigation & Drainage District

SALMON, LEWIS & WELDON, P.L.C. Phoenix
By Mark A. McGinnis
Attorneys for Maricopa-Stanfield Irrigation & Drainage District,
Central Arizona Water Conservation District, and Central Arizona
Irrigation and Drainage District

ENGELMAN BERGER, P.C. Phoenix
By William H. Anger

And

CRAIG D. TINDALL, GLENDALE CITY ATTORNEY Glendale
By Kent Russell Romney, Assistant City Attorney
Attorneys for City of Chandler, City of Glendale, City of
Scottsdale, and City of Mesa

BROWN & BROWN LAW OFFICES, P.C. Saint Johns
By David A. Brown
Attorneys for Franklin Irrigation District

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

2
RYLEY CARLOCK & APPLEWHITE PA Phoenix
By Cynthia M. Chandley
John C. Lemaster
L. William Staudenmaier, III
Rhett A. Billingsley
Sean T. Hood
Attorneys for Freeport-McMoRan Corporation and Roosevelt Water
Conservation District

UNITED STATES DEPARTMENT OF JUSTICE Washington, DC
By John L. Smeltzer
F. Patrick Barry
Attorneys for United States of America

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

And

MCELROY MEYER WALKER & CONDON PC Boulder, CO
By Scott McElroy
Alice E. Walker
Attorneys for the Navajo Nation

MAGUIRE & PEARCE, P.L.L.C. Phoenix
By Michael J. Pearce
Attorneys for ASARCO LLC

MOYES SELLERS & SIMS LTD Phoenix
By Steven L. Wene
Attorneys for City of Safford

CURTIS, GOODWIN, SULLIVAN, UDALL & SCHWAB, P.L.C. Phoenix
By William P. Sullivan
Attorneys for Town of Gilbert

BROENING, OBERG, WOODS & WILSON, P.C. Phoenix
By Marilyn D. Cage
Attorneys for City of Goodyear

STEPHEN M. KEMP, PEORIA CITY ATTORNEY Peoria
By Stephen J. Burg
Attorneys for City of Peoria

GARY VERBURG, PHOENIX CITY ATTORNEY Phoenix
By M. James Callahan, Assistant City Attorney
Attorneys for City of Phoenix
3
ANDREW B. CHING, TEMPE CITY ATTORNEY Tempe
By Charlotte Benson
Attorneys for City of Tempe
________________________________________________________________

P E L A N D E R, Justice

¶1 As part of the ongoing adjudication of rights to use

water in the Gila River System and Source,1 the superior court

approved the settlement agreement of the Gila River Indian

Community (“GRIC”).2 We accepted interlocutory review and now

affirm the judgment and decree of the adjudication court.

Background

¶2 In 2004, Congress enacted the Arizona Water

1
The background facts and procedural history of the Gila
River general stream adjudication are provided in several cases,
including San Carlos Apache Tribe v. Superior Court, 193 Ariz.
195, 202 ¶¶ 2-3, 972 P.2d 179, 186 (1999), and In re Rights to
the Use of the Gila River (Gila River I), 171 Ariz. 230, 232-33,
830 P.2d 442, 444-45 (1992).
2
  In addition to GRIC, the settling parties include the
United States; the State of Arizona; the Salt River Project
Agricultural Improvement and Power District; the Salt River
Valley Water Users’ Association; the Roosevelt Irrigation
District; the Roosevelt Water Conservation District; Arizona
Water Company; the cities of Casa Grande, Chandler, Coolidge,
Glendale, Goodyear, Mesa, Peoria, Phoenix, Safford, Scottsdale,
and Tempe; the towns of Florence, Mammoth, Kearny, Duncan, and
Gilbert; the Maricopa-Stanfield Irrigation & Drainage District;
the Central Arizona Irrigation and Drainage District; Franklin
Irrigation District; Gila Valley Irrigation District; the San
Carlos Irrigation and Drainage District; the Hohokam Irrigation
and Drainage District; the Buckeye Irrigation Company; the
Buckeye Water Conservation and Drainage District; Central
Arizona Water Conservation District; Phelps Dodge Corporation;
and the Arizona Game and Fish Commission. Agreement at 4. 
4
Settlements Act (“AWSA”), Pub. L. No. 108-451, 118 Stat. 3478

(2004), as “part of a broader effort by federal, state, and

tribal entities to resolve water rights issues” in this state.

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

River Sys. and Source (Gila River VII), 217 Ariz. 276, 278 ¶ 3,

173 P.3d 440, 442 (2007). Title II of the AWSA authorizes

settlement of GRIC’s federal water rights claims.3 Under the

settlement at issue here, GRIC will receive 653,500 acre-feet of

water per year (“AFY”) from a combination of sources, in return

for which GRIC and the United States on GRIC’s behalf waive

claims to greater diversion rights, damages to water resources,

and the right to contest certain uses of Gila River water.

¶3 In May 2006, the settling parties applied for approval

of the GRIC settlement agreement with the adjudication court.

The court ordered the Arizona Department of Water Resources

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

settlement. ADWR submitted its assessment in August 2006.

¶4 The San Carlos Apache Tribe, Tonto Apache Tribe, and

Yavapai-Apache Nation (collectively, the “Apache Tribes”)

objected on multiple grounds to the settlement agreement. The

3
“The [Gila River Indian Reservation] covers about 580
square miles or approximately 373,000 acres . . . and is located
in Central Arizona, just south of the Phoenix metropolitan area
in Maricopa and Pinal Counties.” Ariz. Dep’t of Water
Resources, Technical Assessment of the Gila River Indian
Community Water Rights Settlement (“Assessment”) at 2-1 (2006).
5
Lower Gila Water Users (“LGWUs”), consisting of the Town of Gila

Bend, Arlington Canal Company, Enterprise Ranch, Paloma

Irrigation & Drainage District, and various individual

appropriators of Gila River water, also objected, as did ASARCO

LLC. In November 2006, the settling parties responded to the

objections and moved for summary disposition. The Apache

Tribes, the LGWUs, and ASARCO each responded to that motion, and

the Apache Tribes and ASARCO cross-moved for summary

disposition.

¶5 The adjudication court limited its inquiry to matters

specified in this Court’s 1991 Special Procedural Order

Providing for the Approval of Federal Water Rights Settlements,

Including Those of Indian Tribes (“Special Order”). The court

determined that the Apache Tribes had no viable objections

because the agreement did not affect their water rights. The

court denied ASARCO’s cross-motion and granted summary

disposition against both ASARCO and the LGWUs on all their

objections except claims pertaining to the quantity of water

GRIC would receive under the settlement agreement. Those

parties later stipulated that the water quantity was not more

extensive than GRIC could show at trial.

¶6 Based on the parties’ submissions of stipulated facts

and exhibits, and confining its review to those matters

prescribed in the Special Order, the adjudication court entered
6
a judgment and decree approving GRIC’s settlement agreement.

This Court granted the request of the Apache Tribes, the LGWUs,

and ASARCO for interlocutory review. We have jurisdiction under

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

for summary disposition of objections are considered under

Arizona Rule of Civil Procedure 56. See Special Order § (D)(2).

This Court reviews de novo the interpretation and application of

the Special Order vis-à-vis settlement agreements as well as the

adjudication court’s grant of summary disposition. See In re

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

Sys. and Source (Gila River VI), 212 Ariz. 64, 69 ¶ 12, 127 P.3d

882, 887 (2006); Andrews v. Blake, 205 Ariz. 236, 240 ¶ 12, 69

P.3d 7, 11 (2003).

¶7 The Special Order governs approval of settlement

agreements involving the claims of Indian tribes to use water in

the Gila River system and source. Special Order §§ (A)-(D); see

Gila River VII, 217 Ariz. at 278-79 ¶ 10, 173 P.3d at 442-43.

Under the Special Order, any claimant may file an objection

asserting that (1) approval of the settlement agreement would

cause material injury to its claimed water rights; (2) the

conditions warranting the initiation of special proceedings have

not been satisfied; or (3) the settlement agreement establishes

water rights in the Gila River mainstem that are more extensive

than the Indian tribe or federal agency would have been able to
7
prove at trial. Special Order § (C)(1). The adjudication court

then resolves any motions for summary disposition of objections,

considers discovery requests, and hears objections on matters

for which summary disposition was not granted. Id. § (D)(1).

¶8 The Special Order requires the court to approve the

settlement agreement if it finds by a preponderance of the

evidence that there is a reasonable basis to conclude that the

water rights granted in the agreement are no more extensive than

the Indian tribe or federal agency could have proven at trial,

the objector’s claimed water rights are not materially injured

or are preserved under the express terms of the settlement

agreement, and the settlement agreement was reached in good

faith. Id. § (D)(6); see Gila River VII, 217 Ariz. at 279 ¶ 12,

173 P.3d at 443.

¶9 This Court recently addressed the application of the

Special Order in Gila River VII. There we noted:

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 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
8
 non-settling claimants.

217 Ariz. at 279 ¶ 13, 173 P.3d at 443. We concluded that the

adjudication court is limited to considering the objections

provided in the Special Order when deciding whether to approve a

settlement agreement. Id. at 280-81 ¶¶ 16-20, 173 P.3d at 444-

45. We reaffirm that conclusion.

Objections

¶10 The Apache Tribes, the LGWUs, and ASARCO largely

complain that the limited scope of settlement review provided in

the Special Order unfairly prevents them from challenging

settlements on constitutional and other grounds and from

protecting their own claimed water rights. We disagree and find

that the Special Order serves several important purposes.

¶11 The “size and complexity” of this general stream

adjudication, initiated in 1974, are well documented. Joseph M.

Feller, The Adjudication That Ate Arizona Water Law, 49 Ariz. L.

Rev. 405, 407 (2007); see also Gila River I, 171 Ariz. at 232,

830 P.2d at 444 (noting, eighteen years ago, “[t]he procedural

history of this adjudication is already complex”). Much of the

adjudication has necessarily centered on the claims of Indian

tribes, in part because of the “now well-established” principle

that “the government, in establishing Indian or other federal

reservations, impliedly reserves enough water to fulfill the

purposes of each such reservation.” In re Gen. Adjudication of
9
All Rights to Use Water in the Gila River Sys. and Source (Gila

River V), 201 Ariz. 307, 311 ¶ 9, 35 P.3d 68, 72 (2001)

(discussing Winters v. United States, 207 U.S. 564 (1908)); see

also United States v. Superior Court, 144 Ariz. 265, 270, 697

P.2d 658, 663 (1985) (“In the scheme of priorities, the claims

. . . of the Indians rank high.”).

¶12 “[M]uch of Arizona is arid desert land without

sufficient water to meet all demands.” United States, 144 Ariz.

at 269, 697 P.2d at 662. “The problem, therefore, is clear.”

Id. at 270, 697 P.2d at 663. As this Court observed a quarter

century ago:

[T]he current state of our water supply is
critical. . . . Since the amount of surface
water available is insufficient to satisfy
all needs, and since Arizona follows the
doctrine of prior appropriation, it is
unavoidable that the priority claims of
large users will reduce, if not eliminate,
the amount of water available to some of
those with lower priority.

Id. (citations omitted).

¶13 Those words still ring true today. Viewed with those

considerations in mind, the Special Order neither arbitrarily

nor unfairly limits the scope of review of Indian tribe water

settlements. Indian tribes alone originally claimed more water

than is available in the Gila River system. Therefore, when

Indian claims are settled and such settlements meet the

conditions of the Special Order, it not only significantly
10
advances this adjudication but also benefits other non-settling

parties, Indian and non-Indian alike, by reducing the claimed

AFY of any one tribe to an amount below that which it could have

proven at trial. The Special Order preserves the objecting

parties’ ability to assert their various claims but defers

consideration of some of them by the adjudication court and on

appeal, a procedure consistent with this Court’s general

practice of avoiding interlocutory appeals. Accordingly, we

reject the broad challenges of the objecting parties to the

Special Order and turn to the specific objections raised to the

GRIC settlement.

The Apache Tribes

¶14 The Apache Tribes first argue that, notwithstanding

the Special Order, the adjudication court had an inherent duty

to consider the constitutionality, legality, and fairness of the

settlement agreement. We rejected this argument in Gila River

VII. 217 Ariz. at 279-80 ¶¶ 15-20, 173 P.3d at 443-44.4 These

objections “fall outside the narrow scope of review mandated by

the Special Order . . . [and] can be addressed at a later date

4
The Apache Tribes intervened in Gila River VII and joined
with the Pascua Yaqui Tribe in making the same arguments the
Apache Tribes urge here. 217 Ariz. at 279-80 n.6, ¶ 15, 173
P.3d at 443-44 n.6 (noting that “the Apache Tribes’ objection to
the adjudication court’s interpretation of the Special Order [in
this case] mirrors the one raised” in Gila River VII and that
the issue raised in both cases “is the same”).
11
without any injury to the Tribe[s] from delay.” Id. at 280

¶ 17, 173 P.3d at 444 (internal citation, quotation marks, and

ellipses omitted).

¶15 Nonetheless, in support of their argument, the Apache

Tribes rely on San Carlos Apache Tribe v. Superior Court, 193

Ariz. 195, 972 P.2d 179 (1999). In that case, this Court

considered the constitutionality of two legislative measures

that revised several statutes addressing surface water rights

and the adjudication process. Id. at 203 ¶ 4, 972 P.2d at 187.

One statute required courts to decree settlement agreements but

did not authorize judicial review of the agreements. Id. at 213

¶ 43, 972 P.2d at 197. That statute, we held, violated the

separation of powers doctrine because, “[i]n an inter sese

proceeding such as this adjudication, a court cannot be required

[by the legislature] to incorporate an agreement that may affect

the availability of water for other claimants or interfere with

senior rights.” Id.

¶16 Here, the adjudication court applied the Special

Order, not a statute enacted by the legislature. Thus, there is

no separation of powers issue, and because the Special Order

expressly provides the terms under which we review Indian water

rights settlements, the analysis in San Carlos Apache Tribe is

12
not applicable.5 See Gila River VII, 217 Ariz. at 281-82 ¶¶ 25-

27, 173 P.3d at 445-46.

¶17 The Apache Tribes further assert the adjudication

court erred as a matter of law in ruling that they lacked

standing to claim material injury. They argue that approval of

the settlement agreement will adversely affect the water rights

of the San Carlos Apache Tribe and may negatively impact the

water rights of the Yavapai-Apache Nation in the future.

¶18 The adjudication court did not expressly state that

the Apache Tribes lacked standing to contest the settlement.6

5
The Apache Tribes also ask us to address and resolve the
differences between the procedural orders this Court entered in
the Gila River and the Little Colorado River adjudications.
Although the Little Colorado River Administrative Order permits
the adjudication court to consider whether a settlement
agreement “is fair, adequate, reasonable, and consistent with
applicable law,” that order is not before us, and we again
“decline to revisit the Special Order” that has controlled this
adjudication for almost two decades. Gila River VII, 217 Ariz.
at 280 n.8, ¶ 16, 173 P.3d at 444 n.8.
6
The adjudication court stated that

[its] limited review of the proposed
settlement mandates a finding that the
Apache Tribes, like the Navajo Nation,
cannot put forth a viable objection in this
special proceeding. This is true because
approval of the settlement agreement and the
proposed judgment and decree cannot affect
the Apache Tribes’ water rights, claims or
entitlements to water.

Minute Entry, Mar. 7, 2007. Using that same language a month
earlier, the adjudication court ruled that the Navajo Nation
“lacks standing to object” to the approval of the GRIC
13
Rather, the court correctly ruled that their objections fell

outside the limited scope of review prescribed by the Special

Order. A settlement agreement will be approved if the

adjudication court determines, among other things, that the

objector’s water rights are not materially injured or are

preserved “under the express terms of the settlement agreement.”

Special Order § (D)(6)(b). Because those two conditions are

disjunctive, the adjudication court must approve the settlement

agreement as long as the agreement expressly states that the

objector is not bound and is free to pursue its claims in the

general adjudication. See Gila River VII, 217 Ariz. at 279 ¶ 13,

173 P.3d at 443.

¶19 The “express terms” of the GRIC settlement agreement

provide that “[n]othing in this Agreement shall be construed to

quantify or otherwise affect the Water Rights, claims or

entitlements to Water of any tribe, band or community other than

[GRIC].” Agreement ¶ 30.22. Similar language appears in

paragraph 23 of the adjudication court’s judgment and decree.

Indeed, the AWSA itself prohibits the agreement from affecting

the water rights of any other Indian tribe. AWSA §§ 213(b),

401. Because the Apache Tribes “retain all remedies available

settlement agreement. Minute Entry, Feb. 23, 2007. No claims,
objections, or rulings relating to the Navajo Nation are before
us in this proceeding.
14
before approval of the settlement necessary to protect their

rights in the general adjudication[,]” approval of the

settlement agreement did not hinge on absence of any material

injury to the Apache Tribes. Gila River VII, 217 Ariz. at 281

¶ 22, 173 P.3d at 445. And, in any event, because the

settlement agreement does not affect their rights or remedies,

it cannot materially injure them. See id.

¶20 The Apache Tribes next claim that ADWR did not comply

with the adjudication court’s order requiring it to factually

and technically assess the proposed settlement. Therefore, they

assert, the court did not have an informed basis on which to

determine whether the settlement agreement adversely affected

their water rights. The Apache Tribes further argue they were

entitled to a hearing on the merits of their material-injury

objection.

¶21 Pursuant to the court’s order, ADWR produced a

technical assessment that included a chapter addressing the

“probable impacts of the settlement agreement” on both water

resources and other claimants. Assessment at ch. 7. Nothing in

the court’s order required ADWR to specifically consider the

impact of the settlement agreement on the Apache Tribes.

Furthermore, an assessment of their rights (by either a

technical analysis or a hearing on the merits) is irrelevant to

a finding of material injury because the Apache Tribes are not
15
bound by the settlement agreement. See Gila River VII, 217

Ariz. at 282 ¶ 30, 173 P.3d at 446.

¶22 The Apache Tribes also contend the adjudication court

never saw the executed version of the settlement agreement. But

the judgment and decree expressly states that the court

considered “the Amended and Restated Settlement Agreement dated

October 21, 2005.” And in the original application for special

proceedings, the settling parties stated that copies of the

agreement were available for inspection at ADWR as well as every

county’s superior court clerk’s office. Application at 4 ¶ 3.7

Therefore, we find no merit to this argument.

¶23 Finally, the Apache Tribes assert that GRIC will

receive more water by settlement than it could have established

at trial. The settlement agreement provides GRIC with 653,500

AFY, which includes 328,800 AFY of Central Arizona Project

(“CAP”) water, 156,700 AFY of underground water, 155,400 AFY of

surface water,8 and 12,600 AFY of reclaimed water. Agreement

¶ 4.1. Because CAP water is not from the Gila River system and

7
The application is available at http://www.azwater.gov/
AzDWR/StatewidePlanning/Adjudications/AZWaterSettlements.htm
(last visited Feb. 17, 2010).
8
The surface water is composed of 125,000 AFY under the 1935
Globe Equity Decree; 5,900 AFY furnished by the Salt River
Project in lieu and satisfaction of GRIC’s rights under the 1903
Haggard Decree; 4,500 AFY of water from Roosevelt Water
Conservation District; and 20,000 AFY of Salt River Project
stored water. Assessment at 3-2, 3-8 to 3-11.
16
source and is outside the adjudication court’s jurisdiction, we

exclude that water from our analysis.

¶24 In the adjudication, GRIC claimed aboriginal rights of

934,805 AFY, federal reserved rights of almost 2.5 million AFY,

and prior appropriative rights of 2.7 million AFY. The United

States on GRIC’s behalf also asserted a right to more than 1.5

million AFY. Assessment at 4-4 to 4-9. In addition, according

to ADWR, the total average water use on the GRIC reservation for

both agricultural and non-agricultural purposes is between

760,586 and 1,347,500 AFY. Id. at 8-4.

¶25 The settlement plainly provides for fewer AFY than

GRIC was allocated under the Globe Equity Decree (“Decree”).9

GRIC is entitled to at least 967,215 AFY under that Decree,10

consisting of (1) 303,276 AFY (210,000 AFY with a time

immemorial priority and 93,276 AFY with a 1924 priority) from

the Gila River mainstem for 50,546 acres of GRIC’s reservation,

Decree, Articles V, VI(1)-(4); (2) 17,950 AFY of natural flow

9
The Globe Equity Decree, which is under the jurisdiction of
the federal district court, “defines and adjudicates the claims
and rights of the parties [in that case to the use of the Gila
River mainstem] by listing the dates of priority and amounts of
water to which each is entitled. The Decree also specifies the
places at which the parties may divert water.” Gila River VI,
212 Ariz. at 67 ¶¶ 6-7, 127 P.3d at 885 (internal quotation
marks omitted).
10
Although not binding on the Apache Tribes, the LGWUs
stipulated that the total quantity of existing water rights held
17
water rights ranging in priority from 1873-1903 for 2,992.5

acres, id. Article VI(6); (3) 645,989 AFY of stored water with a

1924 priority date for 50,546 acres, which is GRIC’s pro rata

allocation of the San Carlos Irrigation Project’s right to

1,285,000 AFY stored in the San Carlos Reservoir, id. Article

VI(5); and (4) an unspecified amount of pumped groundwater, id.

Article VII.

¶26 In sum, the water claimed on behalf of GRIC, its

current water use, and GRIC’s Globe Equity Decree rights are

each considerably greater than the amount allocated to it under

the settlement agreement. Accordingly, the adjudication court

had “a reasonable basis to conclude that [GRIC’s] water rights

. . . established in the settlement agreement . . . are no more

extensive than [GRIC] would have been able to prove at trial.”

Special Order § (D)(6)(a).

¶27 To the extent the Apache Tribes argue the GRIC

settlement adversely affects the quality of their water, we

conclude that the determination whether an Indian tribe receives

more water by settlement than it could have shown at trial is

limited to an analysis of water quantity. Settlement approval

does not hinge on a finding that the quality of other claimants’

water is unaffected. This limitation is necessary because of

by GRIC and the United States on GRIC’s behalf under the Globe
Equity Decree was at least 967,215 AFY. 
18
the nature of the adjudication proceedings, in which parties are

settling disputes over water rights at different times and with

different parties. The consideration of any factors relating to

water quality is not encompassed by the Special Order, would be

fraught with speculation, and would unduly hinder and delay

settlements.

¶28 Although water quality is not a necessary or

appropriate consideration under the Special Order, claimants may

still assert their rights to a higher quality of water in the

general stream adjudication, unless prohibited by agreements,

prior decrees, or court rulings. The Apache Tribes’ objection

about the quality of their water fails here, however, because it

falls outside the Special Order’s scope of review.

The LGWUs

¶29 The LGWUs first argue material injury because the lack

of priority dates and other attributes for the sources of water

in the agreement makes it impossible to tell if water will be

available to fulfill their water rights.11 But the water from

the Gila River system allocated to GRIC under the settlement

agreement retains all its pre-existing attributes and, as noted

below, the LGWUs are not bound by the settlement. Thus, if the

11
In oral argument, the LGWUs claimed that seventy-two
percent of GRIC’s reservation was created after they first
diverted water from the Gila River.
19
LGWUs are unable to obtain sufficient water to satisfy their

claimed entitlement, they remain free to assert their rights in

the general stream adjudication. That GRIC’s settlement means

it no longer will serve in its traditional adversarial role

against various upstream water users does not establish material

injury to the LGWUs.

¶30 The LGWUs also contend that applying the Special Order

to preclude them from litigating their objections to this

settlement violates their procedural and substantive due process

rights. Specifically, the LGWUs argue that the settlement

agreement results in a taking of their vested property rights by

preventing them from making calls on the river, confirming water

rights among the settling parties, requiring parties whose

claims have not been adjudicated to contribute water to GRIC,

and granting to other users (via the settlement agreement’s

“safe harbor” provisions) water rights that displace their

senior rights. The Special Order, the LGWUs assert, prevents

them from pursuing and establishing those claims.

¶31 In upholding the Special Order’s application in Gila

River VII, however, we stated that, “[t]hrough 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.” 217 Ariz. at 279 ¶ 11, 173 P.3d at 443. For the

reasons discussed earlier, supra ¶¶ 10-13, we are not inclined
20
to overturn or deviate from the Special Order at this late date,

particularly when doing so would frustrate or unduly delay good-

faith settlements. Therefore, the adjudication court correctly

rejected the LGWUs’ broad challenge to the Special Order itself

and, instead, properly focused on whether any of their

objections fell within the Special Order’s limited scope.

¶32 The LGWUs next assert that the adjudication court’s

judgment and decree unlawfully binds them because the settlement

agreement does not expressly provide otherwise. The LGWUs are

not bound by the settlement or judgment, however, because they

are not settling parties and did not sign either the settlement

agreement or the proposed Paloma Agreement.12 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)

(1991); see also Gila River VII, 217 Ariz. at 281 ¶ 22, 173 P.3d

at 445.

¶33 Paragraph 24 of the judgment and decree provides:

Nothing in the Settlement Agreement shall

12
The Paloma Agreement was offered for the LGWUs’ acceptance
until the enforceability date of the settlement agreement. The
Paloma Agreement provided that GRIC and the United States would
not challenge the LGWUs’ water claims, and in return the LGWUs
would refrain from objecting to GRIC’s use of water in
accordance with the settlement agreement.
21
 affect the right of any Party, other than
the Community and the United States, on
behalf of the Community, Members and
Allottees, to assert any priority date or
quantity of water for Water Rights claimed
by such Party in the Gila River Adjudication
or other court of competent jurisdiction.

In a footnote, the judgment and decree states that

“[c]apitalized terms used [therein] shall be as defined in the

Settlement Agreement.” And the settlement agreement states the

term “‘Party’ shall mean an entity represented by a signatory to

this Agreement.” Agreement ¶ 2.129.

¶34 Nonetheless, in accordance with the clear intent of

the adjudication court, the understanding of the settling

parties, applicable legal principles, and common sense, we

interpret “Party” in the judgment and decree as including all

parties in the general stream adjudication. Based on this

interpretation of the judgment and decree, with which GRIC and

the United States agreed at oral argument in this Court, neither

the LGWUs nor any other non-settling claimants (such as ASARCO)

in the adjudication are bound by the terms of the settlement

agreement or otherwise prevented from asserting their rights to

Gila River water.

¶35 Although the GRIC settlement agreement provides, with

certain exceptions pertaining to Indian tribes, that the Globe

Equity Decree “shall be binding upon all parties” to these

proceedings, the adjudication court omitted that provision from
22
its judgment and decree. As that court pointed out, however,

Arizona Revised Statutes (A.R.S.) § 45-257(B)(1) (2003) requires

the adjudication court to accept the determination of water

rights and the appropriation dates in prior decrees unless such

rights have been abandoned.13 Id. Thus, although the LGWUs may

argue they have higher priority rights, they cannot deny that

GRIC and the United States on GRIC’s behalf possess the rights

and priority dates set forth in prior decrees, absent

abandonment.

¶36 Among other constitutional challenges, the LGWUs argue

the settlement agreement’s safe harbor provisions create an

unconstitutional riparian system of water allocation. Under

those provisions, GRIC, the San Carlos Irrigation & Drainage

District, and the United States agreed not to challenge, object

to, or call on qualified users that were not parties to the

Globe Equity Decree as long as their water use complied with

stated conditions. Agreement ¶¶ 26.8.1, 26.8.2.1, 26.8.2.3.

The LGWUs also claim the settlement agreement violates Arizona’s

severance and transfer of water rights statute, see A.R.S. § 45-

13
The Globe Equity Decree, see supra note 9, is discussed in
Gila River VI, 212 Ariz. at 67 ¶¶ 4-7, 127 P.3d at 885.
According to ADWR’s technical assessment of the GRIC settlement,
the 1903 Haggard Decree, entered in an action the United States
filed, “recognized the rights of [GRIC] lands and established
the number of acres and associated priority dates ranging from
pre-1894 through 1901.” Assessment at 3-10, n.9.
23
172(A)(5), because the Paloma Irrigation & Drainage District did

not approve any changes in the points of diversion or places of

use for the water sources in the agreement.

¶37 As did many of the objections raised in Gila River

VII, however, the LGWUs’ constitutional and statutory arguments

fall outside the Special Order’s limited scope of review and can

be addressed at a later date without injury to the LGWUs.14 217

Ariz. at 280 ¶ 17, 173 P.3d at 444. In any event, the safe

harbor provisions do not change the system for allocating water

– they simply protect eligible users with junior water rights

from receiving a call from GRIC to satisfy its senior rights.

The provisions also do not prevent any other party from

asserting its priority water rights. In addition, because the

LGWUs are not bound by the settlement agreement, they may seek

relief if the safe harbor provisions ultimately result in an

adverse impact on their water rights. See Gila River VII, 217

Ariz. at 280 ¶ 19, 173 P.3d at 444. Likewise, the Paloma

Irrigation & Drainage District may bring a claim later if it

determines that water is being contributed to GRIC in violation

of A.R.S. § 45-172(A)(5).

14
For that same reason, we do not address the Apache Tribes’
challenges to the safe harbor provisions on constitutional
grounds, first raised belatedly in their reply brief. See
Webster v. Culbertson, 158 Ariz. 159, 163, 761 P.2d 1063, 1067
(1988) (issue not raised and argued in opening brief is waived). 
24
¶38 The LGWUs next assert the adjudication court should

have included CAP and Blue Ridge stored water when it considered

the quantity of water GRIC obtained by settlement. In its

assessment, however, ADWR excluded only CAP and reclaimed water

from its determination whether GRIC settled for less water than

it could have proven at trial.15 Assessment at 8-4 to 8-5. CAP

water is delivered pursuant to contract with the federal

government and is not subject to appropriation under state law.

Maricopa-Stanfield Irrigation & Drainage Dist. v. United States,

158 F.3d 428, 431 (9th Cir. 1998). Therefore, CAP water, which

is outside the jurisdiction of the adjudication court, was

properly excluded from ADWR’s analysis. See Gila River VII, 217

Ariz. at 283 ¶¶ 31-32, 173 P.3d at 447.

¶39 Finally, the LGWUs claim that the settlement agreement

breaches the 1945 Arlington Agreement, in which GRIC and the

United States agreed to restrict their water use on the

reservation so that Arlington Canal Company would continue to

receive water flows. The settlement agreement, however, does

not alter Arlington’s rights under the Arlington Agreement or

prevent Arlington from asserting such rights. In addition, as

15
ADWR included Blue Ridge stored water (an average of 500
AFY) in its analysis because, when this water is provided under
certain conditions, the amount of underground water specified in
the agreement was reduced by an equivalent amount. Agreement
¶ 4.1, n.2.
25
noted above, we interpret the judgment and decree to preserve

the rights of all non-settling parties in the adjudication.16 In

sum, the adjudication court did not err in rejecting the LGWUs’

objections to the settlement.

ASARCO

¶40 ASARCO is a successor in interest to Kennecott Copper

Corporation, which was a party to the Globe Equity Decree. The

Decree allows ASARCO to withdraw up to 16,221 AFY from the Gila

River mainstem.

¶41 ASARCO first argues the GRIC settlement agreement

breaches the 1977 Water Rights Settlement and Exchange Agreement

(“1977 Agreement”), in which ASARCO agreed that it would either

pay for or provide an equivalent amount of CAP water to GRIC in

exchange for any water diverted from the Gila River. The 1977

Agreement also gives ASARCO priority over Gila River water

received in exchange for CAP water.

¶42 This contract claim falls outside the scope of review

allowed by the Special Order. See Gila River VII, 217 Ariz. at

280 ¶ 17, 173 P.3d at 444. Moreover, the 1977 Agreement (¶ 35)

states that “all actions for the enforcement . . . of this

16
The LGWUs also argue that ADWR failed to obey the
adjudication court’s order to analyze the impact of the
settlement agreement on other claimants’ water rights. We have
considered and rejected the same objection made by the Apache
Tribes. See supra ¶¶ 20-21.
26
AGREEMENT shall be brought in courts of the United States.”

Thus, if the GRIC settlement causes a breach of the 1977

Agreement, ASARCO may assert its rights under that agreement in

federal court.

¶43 ASARCO next asserts that it is materially injured

because the settlement, through the operation of A.R.S. § 45-

257(B)(1), improperly extends the reach of the Globe Equity

Decree to Gila River tributaries. Specifically, the settlement

agreement provides that GRIC shall have the right to 653,500 AFY

from several water sources, including a variable quantity of

water diverted pursuant to GRIC’s Globe Equity Decree rights

with time immemorial priority. ASARCO contends that users of

the San Pedro River are now arguably bound by GRIC’s time

immemorial priority on that tributary, even though the relative

priority of rights must still be determined in the adjudication.

¶44 ASARCO’s claims to the San Pedro are unaffected.

“[T]he [Globe Equity] Decree adjudicated only claims to the Gila

River mainstem and not to its tributaries. The Decree therefore

has no preclusive effect as to the tributaries.” Gila River VI,

212 Ariz. at 76 ¶ 38, 127 P.3d at 894. ASARCO remains free to

assert its claim of senior rights to the San Pedro River when

the relative water rights of that tributary are determined in

27
the general stream adjudication.17

¶45 ASARCO further contends the settlement agreement’s

safe harbor provisions deny it equal protection and confer

special benefits to GRIC in violation of the Arizona

Constitution. Specifically, ASARCO asserts the Upper Gila River

Watershed Maintenance Program, described below, uses state

legislation to implement protections against certain new water

uses and to regulate existing uses, but permits the settling

parties to decide independently who benefits from these

protections. ASARCO claims that, were it not expressly excluded

by name in the agreement, it would have qualified for protection

under the safe harbor provisions.

¶46 The adjudication court, however, correctly declined to

address ASARCO’s safe-harbor argument as outside the scope of

the Special Order. Gila River VII, 217 Ariz. at 280 ¶ 17, 173

P.3d at 444. ASARCO’s claim is flawed for other reasons. In

the settlement agreement, ¶ 26.8.1, the settling parties agreed

to establish the Upper Gila River Watershed Maintenance Program

17
Because the judgment and decree provides GRIC with the
right to divert water from the Gila River mainstem, however, the
water users of the tributaries may be affected due to the
limited amount of available Gila River water. “[P]rior
appropriations of the water of the main stream include the right
to the waters of the tributaries, above the points of diversion,
to the full extent of those prior appropriations.” Clesson S.
Kinney, A Treatise on the Law of Irrigation and Water Rights,
§ 649, at 1137 (2d ed. 1912).
28
(“Program”). The Program was enacted by the legislature,

codified in A.R.S. §§ 45-2601 to 45-2654, and created the Gila

River Maintenance Area. Subject to specified exceptions, the

Program prohibits the construction of new dams, the enlargement

of existing dams, and new irrigation of lands within this area.18

A.R.S. §§ 45-2631, 45-2641; Assessment at 3-14. The Program

applies to all persons who contemplate performing any of these

acts in the maintenance area.

¶47 As discussed above, the settlement agreement’s safe

harbor provisions restrict the ability of GRIC, the San Carlos

Irrigation & Drainage District, and the United States to

challenge, object to, or call on specified users provided they

meet certain conditions and the Program remains in effect.

Agreement ¶¶ 26.8.1, 26.8.2.1, 26.8.2.3; Assessment at 3-14 to

3-15. The specified users primarily consist of those “persons,

entities, corporations, or municipal corporations [and their

successors] . . . in the Gila River Watershed above Ashurst-

Hayden Diversion Dam . . ., [whose] Diversion is not

specifically authorized by the Globe Equity Decree.” Agreement

¶ 2.124B. ASARCO and some others are expressly excluded from

this definition. Id.

18
The irrigation of land in the maintenance area is
prohibited unless the land was being irrigated between January
1, 2000 and August 12, 2005. Assessment at 3-14.
29
¶48 Although the Program was enacted by the legislature,

the safe harbor provisions were not statutorily prescribed but

rather are merely part of the settlement agreement among the

parties. The settling parties were entitled within their

agreement to treat certain water users differently based on

their past relationship with them. See Goodman v. Newzona Inv.

Co., 101 Ariz. 470, 474, 421 P.2d 318, 322 (1966) (“[E]quity

respects and upholds the fundamental right of the individual to

complete freedom to contract or decline to do so, as he

conceives to be for his best interests, so long as his contract

is not illegal or against public policy.” (quoting McCall v.

Carlson, 172 P.2d 171, 187-88 (Nev. 1946))). ASARCO differs

from the water users who qualified for the safe harbor because

it is a party to the Globe Equity Decree, is in a contractual

relationship with a settling party (the 1977 Agreement), and was

in the process of negotiating another exchange agreement with

GRIC.19 Regardless of its treatment within the settlement

agreement, ASARCO remains subject to the statutory provisions of

the Program, as do all other entities in the region. Therefore,

the agreement neither violates ASARCO’s equal protection rights

nor confers special benefits to GRIC.

19
According to ASARCO, negotiations for the new exchange
agreement were part of the overall settlement process but failed
to result in a new agreement.
30
¶49 ASARCO also argues that the safe harbor provisions

confer benefits on GRIC that are qualitatively greater than it

would otherwise have been able to prove at trial. Specifically,

ASARCO claims that the safe harbor provisions provide GRIC with

“selective call” in that GRIC, unlike other downstream

appropriators, can pick and choose which upstream users will be

called to fulfill its senior water rights.

¶50 Again, the determination whether an Indian tribe has

received more water than it could have established at trial is

limited to consideration of water quantity. Thus, as with the

Apache Tribes’ quality-related arguments, we conclude that

qualitative factors pertaining to water rights accorded to GRIC

under the settlement are outside the Special Order’s scope of

review. Thus, ASARCO’s objection is without merit.

¶51 Finally, ASARCO contends it is materially injured

because the agreement’s safe harbor provisions increase the risk

of “rebound call.” A “rebound call” occurs when an upstream

user increases its water use, thereby decreasing the flow to a

downstream user, which in turn causes the downstream user to

call on other upstream users for water who had not caused its

depletion.

¶52 This argument is premature and speculative, as ASARCO

did not present any evidence that the settlement agreement has

caused an increased incidence of such calls. In any event, if
31
the safe harbor provisions result in GRIC increasing the calls

on ASARCO, ASARCO can assert in federal court its Globe Equity

Decree rights to Gila River water. In addition, although GRIC

must refrain from calling on certain qualified junior users

under those provisions, ASARCO can still call on such users in

accordance with its higher priority rights.

Disposition

¶53 For the reasons stated above, we affirm the judgment

and decree of the adjudication court.

_____________________________________
A. John Pelander, Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

_____________________________________
Michael D. Ryan, Justice

_____________________________________
Ann A. Scott Timmer, Judge*

*
Justice W. Scott Bales has recused himself from this case.
Pursuant to Article 6, Section 3 of the Arizona Constitution,
the Honorable Ann A. Scott Timmer, Chief Judge of the Arizona
Court of Appeals, Division One, was designated to sit in this
matter.
32