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In re: General Adjudication of All Rights to Use Water in the Gila River System and Source - 2/13/2006

Arizona Supreme Court Unanimously Decides that 1935 Consent Decree Precludes Tribal Claim to the Gila River Mainstream But Not to River's Tributaries.


Litigation regarding the rights flowing from the Gila River has been ongoing since 1925. In 1925, the United States filed a complaint on behalf of the San Carlos Apache Tribe and others alleging that the Apache Tribe and others were entitled to certain quantities of Gila River water. In 1935 the action was resolved by a Globe Equity Decree ("Consent Decree" or "Decree") defining the parties' rights to water from the flow of the Gila River. This Consent Decree did not, in fact, terminate litigation over Gila River water, but instead, spawned decades of general stream adjudication, including this action filed under legislation passed in 1995 (1995 Ariz. Sess. Law, ch. 9, sec. 25(C)). This legislation directed interested parties to file summary judgment motions challenging claims made by the Apache Tribe or others on its behalf to Gila River water. Various parties, including Phelps Dodge, the Gila Valley Irrigation District and the City of Safford, accepted the invitation to file such motions.

The superior court granted partial summary judgment to these parties, agreeing with them that the Decree precluded additional claims by the Apache Tribe to Gila River mainstream. The court concluded that the Consent Decree did not establish rights as to water from the Gila River tributaries.

The Apache Tribe filed an interlocutory appeal. In determining the preclusive effect of the Consent Decree, the Court applied the so-called "transactional test" outlined in the Second Restatement of Judgments, which precludes subsequent ltigation based upon the same transcaction or stemming from a common nucleus of operative facts. The Court then determined that based on the original 1925 Complaint, the Amended Complaint in that action, and the dismissal of defendants with claims directed solely to tributaries of the Gila River, the Consent Decree was intended to apply only to rights to the Gila River mainstream and did not preclude additional claims to the tributaries.

The Court next considered what particular claims to the mainstream were adjudicated by the Decree. The Tribe argued that only its prior appropriative rights and not its aboriginal or Winters rights (the Tribe's implied right to an amount of water necessary to effectuate the purposes of the reservation), while the other parties' argued that the Decree adjudicated all claims of the Tribe to the Gila River mainstream. The Court held, based on the language of the Complaint, Amended Complaint and Decree, that all of the Tribe's water rights to the Gila River mainstream were resolved in the 1935 Decree. Though the Tribe was not itself a party to that litigation, it was bound, by its privity with the United States, to the terms of the Decree. Additionally, though Phelps Dodge, and others were not parties to the Decree, they were entitled to assert the preclusive effect of the Decree against the Tribe and the United States under the Nevada mutuality exception (from Nevada v. United States, 463 U.S. 110 (1983) (granting an exception to the claim preclusion mutuality requirement when the original litigation involved a comprehensive adjudication intended to settle once and for all all water rights stemming from a river).

Opinion authored by Justice Hurwitz, with Chief Justice McGregor, Vice Chief Justice Berch, Justice Ryan and Judge Pelander concurring.

Posted On: 2/13/2006