In re: The General Adjudication of All Rights to Use Water in the Gila River System and Source – 5/5/2006

May 5, 2006

Arizona Supreme Court Declines to Revisit Comity Holding in Gila River System Decision.

After the Arizona Supreme Court issued its decision in In re the General Adjudication of All Rights to Use Water in the Gila River System & Source, the San Carlos Apache Tribe filed an untimely motion for reconsideration. (ARCAP 22(b) allows a motion for reconsideration to be filed within fifteen days after the filing of a decision, but unlike a brief, such a motion is deemed timely filed only if it is received by the clerk within that time frame. See ARCAP 4(a). The Tribe had mailed the motion on the deadline, rendering it untimely.) The Court suspended the rules under ARCAP 3, and agreed to consider the motion nevertheless. The motion addressed the Court’s refusal, based on the doctrine of comity, to consider the Tribe’s argument that the Globe Equity Decree should have no preclusive effect because of the United States’ allegedly inadequate representation of the Tribe. The Tribe argued that the doctrine of comity was inapplicable because the Globe Equity court lacked jurisdiction to consider a challenge to the decree, in light of the McCarran Amendment, 43 U.S.C. 666, and the Ninth Circuit decision in Northern Cheyenne Tribe v. Adsit, 721 F.2d 1187 (9th Cir. 1983). The Court rejected the Tribe’s argument that the McCarran Amendment deprived the Globe Equity court of jurisdiction to enforce and interpret the 1935 consent decree, noting that the Supreme Court had construed the law as conferring state court jurisdiction, rather than withdrawing federal court jurisdiction. The Court also rejected the Tribe’s argument that the Northern Cheyenne decision required a different result, noting that the Globe Equity litigation had been underway for almost 60 years before the Ninth Circuit determined to stay the San Carlos federal litigation in 1983. The Court denied the motion for reconsideration.

Justice Bales did not participate; Court of Appeals Chief Judge Pelander sat pursuant to Article 6, Section 3 of the Arizona Constitution.