32 ELR 20361 -- In re the General Adjudication of All Rights to Use Water in the Gila River System & Source

In re the General Adjudication of All Rights to Use Water in the Gila River System & Source

Nos. WC-90-0001-IR et al. (35 P.3d 68) (SUPREME COURT OF ARIZONA November 26, 2001)

ELR Digest

The court rejects the use of the practicably irrigable acreage (PIA) test as the exclusive quantification measure for determining water rights on Native American reservations and instead creates a new list of factors to be considered in determining reserved water amounts. Under Winters v. United States, 207 U.S. 564 (1908), the government, in reserving land, impliedly reserves enough water to fulfill the purpose of each reservation. The court first holds that the purpose of Native American reservations is to serve as a permanent home and abiding place for the Native American people living there. In this case, however, the trial court failed to recognize any purpose of the reservation at issue. Nevertheless, although non-Native American reserved rights are narrowly quantified to meet the original, primary purpose of the reservation and water for secondary purposes must be acquired under state law, the trial court correctly held that the significant differences between Native American and non-Native American reservations preclude application of the primary/secondary purpose test to Native American reservations. The court next holds that the trial court erred in holding that each Native American reservation was entitled to the amount of water necessary to irrigate all of the PIA on that reservation. The PIA method of determining water allotments is neither practicable nor objective. The PIA test has the potential for inequitable treatment of tribes based solely on geographical location, and it forces tribes to pretend to be farmers in an era when large agricultural projects are risky, marginal enterprises. And not only does the PIA method create a temptation for tribes to concoct inflated, unrealistic irrigation projects, it deters consideration of actual water needs based on economic choices, and potentially frustrates the requirement set forth in Winters that federally reserved water rights be tailored to minimal need. Therefore, the court sets out a list of factors that, on remand, must be examined and balanced before determining a reservation's water rights, including the tribe's history; tribal culture; the tribal land's geography, topography, and natural resources, including groundwater availability; the tribe's economic base; past water use on a reservation; and the tribe's present and projected future population.

The full text of this decision is available from ELR (33 pp., ELR Order No. L-416).

Counsel for Petitioner
M. Byron Lewis
Salmon, Lewis & Weldon
2850 E. Camelback Rd., Ste. 200, Phoenix AZ 85016
(602) 801-9060

Counsel for Respondent
Joe P. Sparks
Sparks, Tehan & Ryley
7503 First St., Scottsdale AZ 85251
(480) 949-1339

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]