Court Gives Federals, Tribes
More Water Rights Than Others

PHOENIX —(AP)— Indian tribes and federal agencies won a major but partial victory in an Arizona Supreme Court ruling that reservations and some federal sites are entitled to extra protection from neighbors' pumping of groundwater.

The right to have pumping stopped or reduced is conditioned on several factors, and case-by-case decisions still must be made for individual reservations and some types of federal property, the court said in a unanimous opinion late last month.

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 for Indian tribes and the federal government. It also impacts 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 lawyer 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,'' Caster added.

The 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 are 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, but a lawyer for the city of 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, said M. James Callahan.

``It's a big step. Whether or not it will lead to resolution remains to be seen,'' Callahan 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.