>Arizona Supreme Court rules tribes have extra water protection
>By Paul Davenport
>Associated Press
>Nov. 21, 1999
>http://www.azcentral.com/news/1121waterrig.shtml
>The Arizona Supreme Court on Friday handed Indian tribes and
the federal
>government a major but partial victory in water-rights law.
>
>The high court ruled that tribal lands are entitled in some
cases to
>extra protection from aquifer-depleting pumping on adjacent
property.
>
>The right to have pumping stopped or reduced is conditioned
on several
>factors, and case-by-case decisions still must be made on
for individual
>reservations and some types of federal property, the court
said in an
>unanimous opinion.
>
>For that reason, the court rejected a request by tribes that
it prohibit
>pumping that is depleting water beneath reservations.
>
>The extra protection for so-called federal reserved water
rights breaks
>new ground and may disrupt long-held assumptions that have
influenced
>the development of the state and its water management, the
ruling said.
>
>However, a comprehensive settlement of water-right disputes
must take
>into account the rights of reservations and other federal
lands to the
>water they need for their purposes, the court said.
>
>The ruling is important both for Indian tribes and the federal
>government as well as farmers, mines, cities and others who
pump
>groundwater from land adjacent to the reservations and certain
federal
>property such as parks, monuments, military bases, national
forests and
>wildlife preserves.
>
>As a practical matter, mining industry attorney Lauren J.
Caster said,
>"We don't really know how important this decision is
until we find out
>in fact whether a specific reservation has a reserve right
to
>groundwater and, if it does, what protection is warranted
under those
>circumstances.
>
>"Then you have to assess the impact on neighboring landowners."
>
>Friday's ruling came in a complex series of lawsuits over
water rights
>to the Gila and Little Colorado river systems, which include
a large
>part of the surface waters of Arizona.
>
>The specific issues decided by the case were whether water
rights for
>reservations and other federal lands extend to groundwater,
not just
>rivers or other surface water, and whether they are entitled
to greater
>protection from groundwater pumping under adjacent land than
other
>property owners.
>
>Federal law and court rulings have not explicitly answered
those
>questions, but U.S. Supreme Court decisions "provide
guideposts toward
>our holding that such a right exists," Court of Appeals
Judge Noel Fidel
>wrote in the opinion.
>
>Those rulings indicate that if the federal government decided
to create
>the reservations and federal areas and to reserve water for
them, "it
>must have intended that reservation of water to come from
whatever
>particular sources each reservation has at hand," Fidel
wrote. "The
>significant question . . . is not whether the water runs above
or below
>the ground but whether it is necessary to accomplish the purpose
of the
>reservation."
>
>Attorneys for several tribes in the litigation could not be
reached
>immediately, but an attorney for Phoenix said the ruling would
have
>"great impact" on settlement negotiations.
>
>The ruling generally strengthens tribes' negotiating positions,
but
>cities, mines and others on the other side may became intransigent
to
>see how they fare in the case-by-case litigation over a particular
>area's rights, M. James Callahan said.
>
>"It's a big step. Whether or not it will lead to resolution
remains to
>be seen," he said.
>
>Fidel and two other Court of Appeals judges decided the case
with two
>Supreme Court justices because three Supreme Court justices
excused
>themselves from the case. The excused justices or their previous
law
>firms were involved in the water-rights cases.
>
>
>
>Reprinted under the Fair Use
http://www4.law.cornell.edu/uscode/17/107.html doctrine of international
copyright law.
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