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Rizona Ourt of Ppeals
Rizona Ourt of Ppeals
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
v.
ORDER VACATED
COUNSEL
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Peter B. Swann and Judge Kent E. Cattani joined.
K E S S L E R, Judge:
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USA v. VERDE DITCH et al.
Decision of the Court
claimants in the Verde Ditch. This judgment (1909 Decree) provided that
the Verde Ditch would be administered by the Verde Ditch Company
(VDC) through court-appointed commissioners.2
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USA v. VERDE DITCH et al.
Decision of the Court
5 The current set of rules and regulations (1989 Rules) note that the
1909 Decree promulgated broad directives to govern the operation and
maintenance of the Verde Ditch and to insure adequate funding to defray
operational costs. The 1989 Rules empower the commissioners to
maintain, repair, and operate the Verde Ditch, as well as stop distribution
of water to shareholders who are in violation of the 1989 Rules.
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USA v. VERDE DITCH et al.
Decision of the Court
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USA v. VERDE DITCH et al.
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DISCUSSION
I. Appellate Jurisdiction
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USA v. VERDE DITCH et al.
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ripe for consideration and review. As the fundamental issue is the ability of
the court to authorize and approve agreements affecting rights to waters in
the Verde River, the fact that VDC currently does not have resources to
participate in the MOU process does not render this appeal moot.
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USA v. VERDE DITCH et al.
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USA v. VERDE DITCH et al.
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Joseph M. Feller, The Adjudication that Ate Arizona Water Law, 49 Ariz. L.
Rev. 405, 407-08 (2007).
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USA v. VERDE DITCH et al.
Decision of the Court
Gabel, the Yavapai Superior Court lacks jurisdiction to issue the order
permitting allocation of water rights to the Verde River through the Verde
Ditch.
23 We disagree with SRP and VDC. The 1909 Decree was limited
to a determination of the original shareholders fractional interest in the
Verde Ditch and concomitantly, their fractional interest in water in the
Verde Ditch at any one time without regard to any quantifiable amount of
water. Indeed, the 1909 Decree expressly states that it is not acting to
allocate or appropriate any water rights. See supra, 5. In contrast, the MOU
or the proposed negotiation of agreements as to Ditch water would
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USA v. VERDE DITCH et al.
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rights have not been previously adjudicated under this article are eligible
to petition to have their rights determined by the court. Id. (emphasis
added). In other words, only those water users who have had their water
rights determined in a general adjudication are unable to bring further
claims, and those whose rights were determined by other courts may still
litigate their claims. Furthermore, water users must litigate their rights in a
general adjudication, as the act applies to [a]ll rights to appropriable water
initiated or perfected on or before the effective date of this act. 1995 Ariz.
Sess. Laws, ch. 9, 24 (1st Reg. Sess.) (historical and statutory notes).
Additionally, although the Water Code protects vested rights, it also states
that those rights shall be adjudicated as provided in this chapter. A.R.S.
45-171. It is clear that the Legislature intended for general adjudications
to be the single determiners of water rights.
28 Although both SRP and VDC argue that the MOU is only a
process document and not a determination of rights, the function of the
MOU is to adjudicate water rights in the Verde Ditch. The MOUs stated
purpose is to avoid the time and cost of extensive litigation regarding
entitlement to Verde River water . . . [through] a comprehensive agreement
on the delineation of lands served by the Verde Ditch that have [HWU].
The MOU defines HWU as
use of the waters of the Verde River System through the Verde
Ditch that was (a) commenced on a particular parcel prior to
June 12, 1919 or (b) commenced after June 12, 1919 pursuant
to a certificate of water right issued by ADWR or other state
agency of similar jurisdiction prior to January 1, 2014 or
pursuant to a severance and transfer of a pre-1919 right
approved under applicable law.
These are water rights. The MOU proceedings are designed to determine
which lands along the Verde Ditch have HWU and to limit the delivery of
Verde Ditch water to those lands. Although the MOU claims the final
agreement shall not be deemed an adjudication of the water rights for any
particular parcel of land that would otherwise be determined in the [Gila]
Adjudication, a determination of water rights claims affecting water
delivery for a subset of users is an adjudication of water rights regardless
of any disclaimer in the MOU.
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USA v. VERDE DITCH et al.
Decision of the Court
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USA v. VERDE DITCH et al.
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31 The 1909 Decree did not determine the rights of Verde Ditch
shareholders to Verde River water as against other Verde River
appropriators. Rather, the 1909 Decree assumed the existence of such rights
and, upon stipulation of the Verde Ditch shareholders, declared rules for
the allocation of water between the shareholders based on their
proportionate interests in the ditch. The jurisdiction exercised by the
Yavapai Superior Court since the 1909 Decree and after the promulgation
of the general adjudication statutes in 1979 have nearly entirely dealt with
maintenance of the Verde Ditch and traditional property disputes. Gabel,
146 Ariz. at 529; see supra 6-7 and n.5.
32 The argument that the 1909 Decree gave the Yavapai Superior
Court prior exclusive jurisdiction because it predates the Gila Adjudication
must fail. The Water Code treats prior decrees9 primarily as evidence rather
than as binding decrees. Although there is a statutory evidentiary
presumption in favor of a prior decree, the rights in that decree must still
be adjudicated in a general adjudication. The court shall accept
information in an applicable prior decree as prescribed by 45-257,
subsection B, paragraph 1. A.R.S. 45-261(A)(1) (2016). Section 45-257
states the court shall
A.R.S. 45-257(B)(1) (2016); cf. United States v. Superior Court In & For
Maricopa Cty., 144 Ariz. 265, 278 (1985) (citations omitted) (finding A.R.S.
45-257(B)(1) valid as an exercise of the legislative power to enact
supplementary provisions to the rules of evidence). Thus, while the 1909
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Decree and the HWU data collected by SRP and VDC might be used as
evidence of water rights, it may only be used in the Gila Adjudication.10
CONCLUSION
10 SRP cites In re Gen. Adjudication of All Rights to Use Water In Gila River
Sys. & Source, 212 Ariz. 64 (2006) (Globe Equity) to support the proposition
that the Yavapai County Superior Court has continuing jurisdiction under
the 1909 Decree. In Globe Equity, the Arizona Supreme Court found that
water claims by a tribe in the Gila Adjudication were precluded by a 1935
decree issued by the United States District Court adjudicating the tribes
rights. Id. at 66, 1. The court held, on grounds of claim preclusion, that
summary judgment in the Gila Adjudication had correctly been granted
against the tribe. Id. at 69, 14. Globe Equity is distinguishable on several
grounds. First, the 1935 decree expressly granted the parties water rights
and specified dates of priority, amounts of water, and points of diversion.
Id. at 67, 6. In contrast, the 1909 Decree grants only shares in the Verde
Ditch and a percentage of the waters therein, with no reference to priority
of appropriation or point of diversion. SRP and VDC cannot rely
successfully on Globe Equity to expand the authorization and jurisdiction of
the Yavapai County Superior Court to include adjudications and
appropriations of water when Hance did not involve such water allocations.
Second, Globe Equity does not hold that the claims should have been
brought in the District Court under its continuing jurisdiction; rather it
holds that summary judgment was properly granted in the Gila
Adjudication because of the preclusive effect of the prior decree which
actually involved appropriation of water rights before the general stream
adjudication statutes were passed. SRP and VDC may submit the 1909
Decree as evidence of purported water rights, but only in the Gila
Adjudication, not in the Yavapai Superior Court to have that court expand
its jurisdiction to affect the Gila Adjudication.
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court, SRP, and VDC. Supra, 13. We therefore vacate the August 26
Order.11
11 Given this holding, we need not discuss the other arguments raised
by the United States seeking vacation of the August 26 Order.
16