In re the General Adjudication of All Rights to Use Water in the Gila River System and Source – 11/30/2007

December 4, 2007

The Arizona Supreme Court Grants Pascua Yaqui Tribe’s Petition for Interlocutory Appeal Regarding Approval of a Settlement Agreement Determining the Tohono O’odham Nation’s Water Rights, But Denies Relief.

Pursuant to the Arizona Water Settlement Act, the United States, the Tohono O’odham Nation (the “Nation”) and various other settling parties sought judgment from an adjudication court confirming a settlement agreement among them regarding the Nation’s water rights. The Pascua Yaqui Tribe (the “Tribe”) filed objections to the judgment and decree, which the adjudication court summarily disposed of. The settling parties and the Tribe sought interlocutory review from the Supreme Court, which the court accepted.

The Tribe’s appeal is based on an Arizona Supreme Court Special Procedural Order providing for the Approval of Federal Water Rights Settlements (the “Special Order”). Under the terms of the Special Order, a settlement will be approved if the settling tribe is no better off than it would be after the final adjudication of all claims, and the settlement preserves the remedies of the non-settling claimants. Other claimants may object to a settlement agreement, but the objecting party must show that its claimed water right would suffer “material injury.”

The Tribe raised numerous objections to the legality and constitutionality of the settlement agreement, asserted that it would suffer from material injury because its due process rights had been violated, alleged federal law had been violated because the settlement stripped adjudication of its “comprehensive” nature, and raised various other procedural objections. The Supreme Court concluded that none of the Tribe’s objections had merit, noting that the settlement agreement determines only the water rights of the Nation, does not provide the Nation with any federal reserved rights, restricts the amount of groundwater the Nation may pump, puts the Nation in no better position that it would be after a trial, and expressly reserves all rights and claims of the Tribe.

Justice Ryan authored the opinion, in which Justices McGregor, Berch and Hurwitz, and Judge Pelander concurred.

Justice McGregor also issued an order granting a request by the United States and other settling parties for an expedited decision, ordering that the adjudication court’s Judgment and Decree approving the Tohono O’odham Settlement is final and non-appealable under Arizona law.