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FEDERAL AND INTERSTATE WATER RESOURCES ASSIGNMENT 13

The Gila River Adjudication and the Future of Tribal Water Rights

“There was a house made of dawn. It was made of pollen and of rain, and the land was very old and everlasting. There were many colors on the hills, and the plain was bright with different-colored clays and sands. Red and blue and spotted horses grazed in the plain, and there was a dark wilderness on the mountains beyond. The land was still and strong. It was beautiful all around.”

N. Scott Momaday, House Made of Dawn (1968)

Reading:

In re General Adjudication of All Rights to Use Water in the Gila River System (Both Opinions)

Notes and Questions:

1. The Gila River adjudication began in 1974 when the Salt River Valley Water Users Association—the membership of which is comprised principally of agricultural water users—petitioned the Arizona State Lands Department for an adjudication of all water rights to the Salt River. In 1979, the Arizona Legislature amended the state’s water laws to provide for litigation of water rights adjudications in the superior courts. The Salt River case was assigned to a judge on the Maricopa County Superior Court in Phoenix. The judge then consolidated the Salt River case with petitions for the adjudication of water rights in the Verde, San Pedro, Upper Agua Fria, Upper Gila, Lower Gila, and Upper Santa Cruz Rivers.

The consolidated cases thus embrace most of the lands and waters of southern Arizona. Parties to the litigation include: the cities of Phoenix, Tucson, Scottsdale, Mesa, Tempe, Chandler, and Glendale and a number of other smaller towns; the Salt River Valley Water Users Association; the Buckeye Water Conservation and Drainage District; the Roosevelt Water Conservation District; the Maricopa County Municipal Water Conservation District; the San Carlos Irrigation & Drainage District; the Gila Bend-Dendora Valley Water Users Association; the Welton-Mohawk Irrigation District; Phelps Dodge, Magma Copper, and other mining companies; the Gila River Indian Community; the San Carlos Apache Tribe; the Tonto Apache Tribe; the Yavapai Apache Indian Community; the Camp Verde Reservation; the Tohono O’odham Nation (previously known as the Ak Chin Band); the Salt River Reservation Tribes; the State of Arizona; and the United States (representing the Tribes, as well as its own interests in water for the Tonto, Gila, Coronado, and Patagonia National Forests and other federal reservations. The Navajo and Hopi Tribes are participating as amici curiae.

The Arizona Supreme Court has now issued ten decisions during the course of the adjudication. In addition, in Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1983), which we will read in the next assignment, the United States Supreme Court held that the McCarren

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Amendment, 43 U.S.C. § 666, establishes a strong policy of federal court abstention in favor of comprehensive state court adjudications of water rights, including tribal water rights.

2. Do you agree with the Arizona Supreme Court in the first Gila River opinion that the federal reserved water rights doctrine applies to groundwater? Is the decision consistent with Cappaert?

Two other courts have followed the Arizona Supreme Court’s lead and have held that tribes may claim reserved rights to groundwater that underlies their reservation lands. Confederated Tribes of the Salish and Kootenai Tribes of the Flathead Reservation v. Stulz, 59 P.3d 1093 (Mont. 2002); United States v. Washington Department of Ecology, No. C01-0047Z (W.D. Wash. Feb. 24, 2003). In the Salish and Kootenai case, the Montana Supreme Court also ruled that the Montana Department of Natural Resources and Conservation may not grant new permits for the appropriation of water within the Flathead Reservation until the reserved rights of the Flathead Tribes are quantified.

3. In Gila I, the Arizona Supreme Court reasons that “if the United States implicitly intended, when it established reservations, to reserve sufficient unappropriated water to meet the reservations' needs, it must have intended that reservation of water to come from whatever particular sources each reservation had at hand. The significant question for the purpose of the reserved rights doctrine is not whether the water runs above or below the ground but whether it is necessary to accomplish the purpose of the reservation.”

Is the implied reservation of groundwater necessary to accomplish the purposes of Indian reservations?

4. Do you agree with the Court that the trial court should recognize a reserved groundwater right only “where other waters are inadequate to accomplish the purpose of a reservation”? Do you agree with the Court’s additional limiting principles:

a. “We do not . . . however, read the case law to require a zero-impact standard of protection for federal reserved rights.”

b. “If injunctions should ultimately prove necessary in this case, they shall likewise be appropriately tailored to minimal need.”

5. Is the court correct that the application of Arizona groundwater law to the tribes’ pumping of groundwater would defeat the purposes of the Indian reservations?

6. Did the Court properly conclude that the tribes’ reserved rights grant them the power to enjoin off-reservation pumping that lowers the groundwater table to a level that interferes with the primary purposes of the reservation? What level is this? If the tribes are required to sink deeper wells than they would in the absence of the off-reservation pumping, would this violate their reserved rights? What would be the appropriate remedy? Are there other types of harm to tribal interests that would violate the primary purposes of the reservations?

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7. What are the potential implications of the court’s extension of the reserved rights doctrine to groundwater? For example, does the decision apply to non-Indian reserved water rights?

8. Do you agree with the Arizona Supreme Court’s conclusion in the second Gila River opinion that the practicably irrigable acreage standard is not the appropriate criterion for the quantification of tribal water rights on all reservations? Should the PIA standard be replaced by a more case-specific and flexible “homelands” approach?

9. Does the Arizona Supreme Court have authority to replace (or to embellish) the PIA standard in light of the United States Supreme Court’s reserved rights jurisprudence?

10. Are Indian tribes likely to be allocated more or less water under the homelands approach than they would receive according to the PIA standard? Should a tribe that has extensive practicably irrigable acreage ever receive less water than it would under the PIA test?

11. Please consider carefully the factors that the court concludes are relevant to the allocation of water to Indian tribes based on homelands needs:

• historical and cultural practices that require water;

• the geography, topography, and natural resources of the reservation, including the availability of groundwater;

• the tribe’s economic base and plans for development;

• past water use as evidence of the value the tribe places on its reserved water rights;

• the economic practicality of potential future water development projects; and

• the present and projected future population of the tribe.

Are these factors appropriate to the quantification of the tribe’s reserved water rights? Do they suggest that the tribe’s reserved rights might expand and contract over time? Would this be consistent with Winters and Arizona v. California?

12. Are tribal water rights quantified under the homelands approach transferable to other uses? Can the tribe transfer its rights for use off the reservation?

13. In 2001, the United States brought suit to declare that the Lummi Indians Tribe in Washington State has federal reserved rights to the groundwater underlying the reservation in quantities sufficient to supply the Tribe’s homeland needs. The Washington Department of Ecology contended that the Tribe’s water rights do not extend to groundwater and that the purposes of the reservation were limited to agricultural and incidental domestic uses. The Tribe’s water rights are based on the Treaty of Port Elliot, which was signed in 1855 and ratified by the Senate in 1859. The treaty was one of many negotiated by Issac Stevens, who was the first territorial governor of Washington.

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In United States v. Washington Department of Ecology, 375 F. Supp. 2d 1050 (W.D. Wash. 2005), Judge Thomas Zilly determined that Treaty applies both to surface and ground water within the Lummi Reservation. Although the irrigable land within the Lummi Reservation is small, Judge Zilly concluded that agriculture nevertheless was the primary purpose of the 1855 Treaty. He rejected the United States’ and the Tribe’s argument request, however, that he adopt the homelands theory of reserved rights articulated by the Arizona Supreme Court in the Gila River cases. According to Judge Zilly,

no federal court has ever found an impliedly reserved water right by first looking to the modem day activities of the Indian nation. This Court finds that the "homeland purpose" theory adopted in Gila River V is contrary to the "primary purpose" doctrine under federal law. Ecology correctly argues that the "homeland purpose" theory is "simply a formulation that does away with determining the purpose and begs the question of what water was reserved to make the homeland' livable." More importantly, Plaintiffs' "homeland" purpose theory conflicts with clear Ninth Circuit precedent. Walton II acknowledged that "one purpose for creating this reservation was to provide a homeland for the Indians to maintain their agrarian society." 647 F.2d at 47-48. However, this language does not constitute a determination of primary purpose for which water was reserved. Id. The Court cannot find a "homeland" primary purpose and end its inquiry. Although compelling in analysis and result, Gila River V is contrary to Ninth Circuit precedent. Plaintiffs' "homeland" theory of reserved water rights must fail as a matter of law. The appropriate inquiry under federal law requires a primary purpose determination based on the intent of the federal government at the time the reservation was established. Winters, 207 U.S. at 577. These implied Winters rights are necessarily limited in nature.

Plaintiffs contend that water was impliedly reserved for important purposes beyond agriculture and domestic use. This finds some support in the Treaty. For example, the Treaty mentions a variety of important activities intended for pursuit by the Lummi, including the construction of schools and churches, hunting, fishing, and gathering, as well as the learning and pursuit of trades. See Treaty, art. V (off-reservation fishing, hunting, and gathering rights preserved); art. XIII (government assistance in moving to and clearing their reservations for homes and farming). In addition, the Treaty reserved specific lands for a school. Id., art. III. However, this land was not on the lands reserved for the Lummi. Id.

In order to support a finding of primary purpose, activities must be more than "valuable for a secondary use," as determined at the time of the Treaty.  See New Mexico, 438 U.S. at 702; see also Adair, 723 F.2d at 1408-09 ("Water rights may be implied only where water is necessary to fulfill the very purposes for which a federal reservation was created,' and not where it is merely valuable for a secondary use of the reservation.'") (citing New Mexico, 438 U.S. at 702); Arizona I, 373 U.S. at 600 (Water is reserved for reservation purposes at the time the reservation is created). Only the amount of water necessary to fulfill the purpose of the reservation is reserved, no more. See Cappaert, 426 U.S. at 141.

Because water rights stemming from a reservation of public land are implied only where "without the water the purposes of the reservation would be entirely defeated," New Mexico, 438 U.S. at 700, the Court finds no community purpose beyond agriculture and domestic use. The Treaty of Point Elliott does not evidence a primary homeland or community purpose, for which water was reserved at the time of the Treaty. As such, the Court finds that as a matter of law the Treaty of Point Elliott reserved water for agriculture and domestic use sufficient to fulfill the

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purposes of the Reservation. The Treaty did not, however, reserve water for additional community or "homeland" purposes as a primary purpose of the Lummi Reservation.  

Two years after Judge Zilly issued this opinion, the parties entered into a settlement agreement. As described by Judge Zilly in his order approving the agreement, United States v. Washington Department of Ecology, 2007 U.S. Dist. LEXIS 84384:

Assuming an actual safe yield of 900 [afa], the moving parties propose to allocate, via the Settlement Agreement, a certain amount of groundwater to each of the constituencies involved, without regard to the seniority or vesting of water rights. Thus, the Settlement Agreement substantially departs from the methods under federal and state law for determining the priority of water rights. * * * The Settlement Agreement's water allocation system obviates the need to quantify the water rights of the Lummi Nation or to determine whether various non-Indian successors perfected and maintained their Winters/Walton rights. For this and other reasons, the moving parties are requesting that the Court vacate its prior orders concerning the applicable federal and state law. * * *

The Settlement Agreement addresses three primary issues: (i) division of water; (ii) management of the aquifer; and (iii) dispute resolution. Under the Settlement Agreement, Ecology is granted exclusive regulatory authority over 120 [afa] of groundwater in the Case Area; an additional 95 [afa] is committed to non-Lummi water users under other settlements and service arrangements. The Lummi Nation may authorize withdrawal of all groundwater in the Case Area not subject to allocation by Ecology or otherwise committed to non-Lummi water users, provided that chloride levels remain within an acceptable range, and the Lummi Nation may use such water for any purpose permitted under federal or tribal law. The moving parties indicate that the apportionment of water between Ecology and the Lummi Nation is roughly equivalent to the current ratio of non-Lummi to Lummi property ownership. The moving parties agree that, of the 6,286 acres of land located within the Case Area, approximately 1,245 acres, or almost 20%, is owned in fee by non-Lummi defendants. In comparison, under the Settlement Agreement, Ecology may allocate to non-Lummi users up to 24% of the actual safe yield of the aquifer (215 of 900 [afa]).

[T]he Settlement Agreement provides water for every existing home in the Case Area. Moreover, the moving parties envision that approximately 50 new homes can acquire water from the Water Associations and another 60 homes will be able to draw water from new wells. These 110 currently undeveloped parcels would not have water rights but for the Settlement Agreement because, under federal and state law, water rights depend on actual use. Walton, 647 F.2d at 51.

The Settlement Agreement explicitly addresses the effect of transferring property from non-Lummi to Lummi ownership or vice versa. When a parcel is deeded by a non-Lummi owner to the Lummi Nation or one of its enrolled members, unless the parcel is receiving water from a Water Association, regulation of the water for that parcel transfers to the Lummi Nation and is withdrawn from Ecology's reserves. Likewise, if an owner with a perfected right to water from Ecology's allocation enters into an agreement to receive water from the Lummi Nation, Ecology's reserves will be reduced by the quantity of water authorized for such parcel of land. On the other hand, if a non-Lummi acquires title from the Lummi Nation, one of its members, or an Indian for whom the United States owns the land in trust, then water rights for the parcel shall be determined by applicable law. The Court interprets this provision of the Settlement Agreement to incorporate the "use it or lose it" doctrines of federal and state law.

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In addition to allocating groundwater, accounting for the transfer of rights, and anticipating well failures, the Settlement Agreement outlines various obligations for managing and preserving the health of the aquifer. As a result, the Settlement Agreement will have binding effect on all parties to this litigation:

(1) No Unauthorized Wells. New wells may not be drilled without prior express written permission as set forth in the Settlement Agreement. Unauthorized wells shall be decommissioned.

(2) Registering and Metering. All wells in the Case Area shall be registered and metered.

(3) Monitoring. For each well, an annual report shall be made concerning meter readings of cumulative water use through September 30 of each year, chloride levels taken as of August of each year, and problems and/or changes in well and/or meter operations.

(4) No Overuse. Users may not withdraw water in excess of the annual limit specified for the property. Violators will be subject to various enforcement mechanisms.

(5) No Unsafe Operation. No domestic service well may operate at a chloride level greater than 250 milligrams per liter.

Finally, the Settlement Agreement establishes a framework for dispute resolution. A Water Master shall be appointed by the Court. The Water Master will have authority to issue injunctions, collect fees, establish penalties and levy fines, file and enforce liens, resolve disputes and enforce decisions, regulate wells or take other emergency measures to protect the aquifer in the event of inaction by Ecology or the Lummi Nation, and hear appeals from decisions of the United States, the Lummi Nation, or Ecology concerning permission or denial thereof to construct a well or withdraw groundwater.

14. In a subsequent opinion in the Gila River Adjudication, In re General Adjudication of All Rights to Use Water in the Gila River System, 212 Ariz. 64, 127 P.3d 882 (2006), the Arizona Supreme Court held that a 1935 settlement known as the “Globe Equity Decree” bars the San Carlos Apache Tribe (and the United States on the Tribe’s behalf) from asserting claims to water from the main stem of the Gila River beyond those rights granted in the Decree, but that it does not preclude new claims to the tributaries of the Gila River.

15. In 2004, Congress enacted Arizona Water Settlements Act, Pub. L. No. 108-451, 118 Stat. 3478 (2004). The Act authorized the allocation of 47 percent of the yield of the Central Arizona Project to tribal water rights settlements and other federal reserved water rights (with the remaining 53 percent available to Arizona and to state water users). It also gave congressional approval to the quantification and settlement of the water rights of two tribes in southern Arizona. Title II of the Act approved the settlement of the water rights of the Gila River Indian Community, which will receive a total of 653,500 afa and $200 million in federal funding. Approximately 328,000 afa of the Tribe’s water will be provided at no cost by the CAP, with the balance coming from the Gila River and tributary groundwater. Title III of the Act amended the 1982 settlement agreement with the Tohono O’odham Nation. Pursuant to the new agreement, the Tribe will receive 66,000 afa from the CAP at no charge and the right to pump 10,000 afa of

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groundwater from the Santa Cruz River basin, which is tributary to the Gila River. The statute also funded a variety of farm improvements and awarded $15 million to the Tohono O’odham in trust.

The following article describes other details of the settlement:

Shaun McKinnon & Billy House, Congress OKs Water Settlement Empowering TribesArizona Republic, Nov. 11, 2004

Arizona secured a surer but leaner water future Wednesday with final congressional approval of the most far-reaching Indian water settlement in U.S. history. The settlement, which now goes to President Bush for his signature, would cede to Indian tribes nearly half the Colorado River water originally set aside for Phoenix and Tucson and allow those tribes to lease it back to growing cities for a profit.

The cities would be able to claim a small amount of new water to add to their existing shares of the river. But more importantly, they would now know for certain the size of their long-term water supply, allowing them to plan better for future growth. Left unsettled, the tribal claims could have dragged through the courts for years and cost the state significantly more in money and water.

Arizona's debt to the federal government for building the Central Arizona Project Canal, which moves water from the Colorado, also would be reduced by the water measure. The measure would end a long-standing feud over repayment costs and clear the way for the CAP board to reduce property taxes in Maricopa, Pinal and Pima counties.

Some central Arizona farmers would eventually lose water to satisfy the tribal claims, but it would be a gradual loss. The deal wouldn't take any water from cities or private water companies and wouldn't raise water rates unless cities signed huge tribal leases in the future. "The word would be 'eureka,' " said Herb Guenther, director of the Arizona Department of Water Resources. "It's knowing where you are and what you have without trying to guess what a court might do. It's a monumental day in Arizona water history."

The settlement designates for Indian tribes more than 650,000 acre-feet of Colorado River water, 47 percent of the CAP Canal's annual flow. The rest of the water would remain for cities and non-Indian farmers and would easily satisfy existing allocations, leaving some for future growth. Two tribes won specific allocations in the measure. The Tohono O'odham Nation south of Tucson is set to receive 37,800 acre-feet and the Gila River Indian Community south of Phoenix would receive 155,700 acre-feet. An acre-foot of water is 325,851 gallons, enough to serve one or two average households for one year. The measure completes a much broader water settlement for the Gila River community, which is poised to control more than 650,000 acre-feet of water drawn from the CAP and the Gila, Salt and Verde rivers. That represents the largest tribal water settlement in U.S. history."We've been in this struggle to regain our water rights for almost a century now," said Gila River Gov. Richard Narcia, who was in Washington, D.C., on Wednesday. "Our traditional name translated is 'River People,' and to regain that water is not only something we've been working toward but also a cultural issue for our people."

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The community plans to put most of the water to work, restoring farmland left fallow for generations. Narcia said the community plans to lease "a small amount" to Valley cities.Some of those cities have already begun negotiating the leases, and others have been working with tribal water projects. But the settlement's true value was the certainty it gave the region's water supply. "This brings certainty to the whole Gila basin, and that is a really important thing in water resources to have certainty," said Kathryn Sorensen, water resources coordinator for Mesa. "It is a way of getting out of horrible, protracted 100-year legal battles over water."The battles won't end entirely. The Navajo Nation and Hopi Tribe in northern Arizona still want their claims to the Colorado River settled, and those discussions have barely begun. The San Carlos Apache Tribe also has claims remaining.

Not everyone was celebrating Wednesday. Water historian and retired journalist Earl Zarbin has voiced strong opposition to the tribal deal, calling it "a gift to them at the expense of everybody else." "Why 1 percent of our population should be able to control that much water is beyond reason or comprehension," Zarbin said. "It sets up a mechanism for these reservations to control the future for Arizona's population growth. These Indian tribes are under no compulsion to lease water to the non-Indians. They can either lease or not lease."

The measure encompasses three settlements: two with Indian communities and a third between Arizona and the federal government. The tribal claims date back nearly two decades and languished for years as scores of interested parties joined in the talks. Under a 1908 U.S. Supreme Court decision, Indian tribes can claim ancestral water rights and seek enough water to meet demands on their current reservation.

Negotiations over the final deal still took several years and failed several times to make it out of Congress. The U.S. Senate finally approved the package Oct 10. On Wednesday, the measure was adopted by the House, sending it to Bush, who has announced support."This legislation offers most everyone something, but not everything to anyone. It represents hard-fought compromise that deserves passage," said Rep. J.D. Hayworth, R-Ariz., the House sponsor of the bill, in urging its passage on the House floor.

All seven of Arizona's other House members were co-sponsors. Sen. Jon Kyl, R-Ariz., was praised repeatedly Wednesday for his work in shepherding the bill and keeping negotiations alive despite frequent setbacks. In a statement, Kyl said that virtually every major water user and provider in central Arizona worked for passage of the measure. "Looking ahead, this could ultimately be nearly as important to Arizona's future as was the authorization of the Central Arizona Project itself," he said.

The measure actually brings closure to the CAP, authorized more than three decades ago as a way of bringing Colorado River water to Phoenix and Tucson. The federal government spent more than $3.6 billion to build the 336-mile canal, which was finished in 1993, and then demanded that Arizona repay $2.3 billion of the cost. The CAP board argued that Arizona owed much less and refused to pay the bill. The federal government sued, but Arizona forced a settlement and agreed to pay $1.65 billion, an amount written into law with Wednesday's vote.

CAP General Manager Sid Wilson said settling the dispute will help give a property-tax break to homeowners in Maricopa, Pinal and Pima counties and will also help the CAP plan its future. "It provides surety for everyone in terms of who has what water and who pays how much," he said. "That's something we need in Arizona."

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In all, the Congressional Budget Office has estimated the cost of the legislation's various components would total $445 million through 2014, according to Hayworth's office. Delegate Donna Christensen, D-Virgin Islands, who like Hayworth sits on the House Resources Committee, said from the House floor that although the measure would be expensive, "I am satisfied the benefits will significantly outweigh the costs to taxpayers."

The bill sets aside money to help tribes build needed water infrastructure, with help specifically for the San Carlos Irrigation Project. That project was initiated in the 1930s but never completed. The measure also would amend the Southern Arizona Water Rights Settlement Act enacted in 1982 to resolve water claims by the Tohono O'odham Nation. The measure would establish water-delivery requirements and construction obligations with regard to the San Xavier Indian Reservation and the Schuk Toak District.

The final provision relates to funding to help complete other negotiations on water issues involving the San Carlos Apache Tribe and the White Mountain Apache Tribe, and Rep. Raul Grijalva, D-Ariz., said the measure "makes it far more likely remaining water disputes can be resolved." "It has not been easy," Rep. Ed Pastor, D-Ariz., said of the legislation. But he noted that "the entire Arizona delegation believes this is the best possible solution."

16. The Gila River Adjudication Court accepted the settlement in 2007 and entered final judgment in favor of the Gila River Indian Community and the Tohono O’odam Nation.

The Pascua Yaqui Tribe objected to the Tohono O’odam settlement and appealed to the Arizona Supreme Court. The Supreme Court affirmed, concluding that the Pascua Tribe was not injured. Although the 2004 statute and the subsequent settlement and judgment did quantify the water rights of the Tohono O’odam Nation, they did not diminish or otherwise limit the Pascua Tribe’s federal reserved water rights because “the settlement determines only the water rights of the Nation, does not provide the Nation with any federal reserved rights, restricts the amounts of groundwater the Nation may pump, and expressly reserves all rights and claims of the [Pascua] Tribe.” In re General Adjudication of All Rights to Use Water in the Gila River System, 217 Ariz. 276, 173 P.3d 440 (2007).

17. The San Carlos Apache Tribe also was displeased with the terms of the settlement and filed suit against the United States for damages for breach of its fiduciary duty to protect the Tribe’s water rights. The Court of Federal Claims dismissed the lawsuit, and the U.S. Court of Appeals for the Federal Circuit affirmed. The Court concluded that the Tribe’s claims were barred by the six-year statute of limitations set forth in the Tucker Act, 28 U.S.C. § 2501. It rejected the Tribe’s contention that the statute began to run only when the Arizona Supreme Court issued its 2006 decision, which concluded that the Globe Equity Decree barred the Tribe from asserting water rights in the Gila River beyond the rights rights recognized in the Decree. Rather, the Federal Circuit held that the statute began to run in 1935 when the Global Equity Decree was first adopted. San Carlos Apache Tribe v. United States, 639 F.3d 1346 (Fed. Cir. 2011). 18. Some of the salutary effects of the quantification of tribal water rights in the Gila River Adjudication are described in the following article:

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Randall C. Archibald, Indians’ Water Rights Give Hope for Better HealthN.Y. Times, Aug. 31, 2008

More than a hundred years ago, the Gila River, siphoned off by farmers upstream, all but dried up here in the parched flats south of Phoenix, plunging an Indian community that had depended on it for centuries of farming into starvation and poverty. If that was not bad enough, food rations sent by the federal government — white flour, lard, canned meats and other sugary, processed foods — conspired with the genetic anomalies of the Indians to sow an obesity epidemic that has left the reservation with among the highest rates of diabetes in the world.

Now, after decades of litigation that produced the largest water-rights settlement ever in Indian country, the Indians here are getting some of their water back. And with it has come the question: Can a healthier lifestyle lost generations ago be restored?

Reviving the farming tradition will prove difficult, many tribal members say, because the tribes, who number 20,000, including about 12,000 on the reservation, have not farmed on a big scale for generations. Fast food is a powerful lure particularly for the young, and the trend of late has been to move off the reservation, to work or live. “Nobody wants to get out and get dirt under their fingernails,” said Pancratious Harvey, one of a handful of tribal members who began a community garden a couple of years ago. Still, the garden, which is filled with vegetables that were once staples in the tribe’s diet, is a sign of enthusiasm for farming that members believe could spread as the water arrives.

On the reservation, the sound of earthmovers fills the air as workers repair dilapidated and abandoned irrigation canals and ditches and dig new ones to distribute billions of gallons of water that the community will soon be receiving. The water settlement, involving the two principal tribes on the Gila River reservation — the Pima, who call themselves Akimel O’otham, or “river people,” and the Maricopa — as well as a related band, the Tohono O’odham Nation on the Mexican border, took effect this year, after being approved by Congress in 2004.

It will take several more years to complete the irrigation and related projects here, at a cost to the federal government of about $680 million, but when done it will allow the community to double the amount of farming, both an economic and cultural boon. For the time being, the community garden, with squash, beans and other vegetables is just over two acres. “We’re relearning how to grow them,” said Ed Mendoza, one of the founders of the garden, the Vah-Ki Cooperative Garden. “People get sick with diabetes, they’re obese, and there are heart attacks and stress because we eat an American diet now. Beans regulate the highs and lows of sugar. Okra makes you healthy. You can eat this food and feel the spirit immediately.”

Elsewhere, several members are acquiring plots in hopes of growing traditional crops as well as more profitable ones like alfalfa. Gila River Farms, the largest tribal agriculture outfit, plans to double its farming, to some 35,000 acres, once the water begins flowing again.

Most of the water was diverted in the late 19th century, slowing the Gila River to a trickle. It was a startling turn of events for a tribe whose ancestors had thrived on the river for generations through an elaborate system of ditches and laterals, some of them still visible today. The construction of the Coolidge Dam, completed in 1928, by the federal government was intended to restore some of the lost water, but the reservation never received enough to bring back

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farming in any big way. Later diversions also depleted the Salt River, which runs north of the reservation and helped support farming as well.

As the water disappeared and the Pima switched to government rations as their staple, obesity, alcoholism and diabetes exploded. Where adult-onset diabetes was hardly present a century ago, it is now everywhere and has been the subject of decades of research by government scientists. More than half of the population over 25 has it, and a rising number of children are getting it.

Scientists have found the genetic makeup of the tribe leaves it predisposed to weight gain from sugary foods. That, coupled with the decline in activity from farming and the drop in the consumption of natural foods, probably explains the high rate of the disease, said Leonard Sanders, a diabetes specialist on the reservation. He said the Pima’s sister tribe in Mexico, which has kept up farming and eating off the land, has normal rates of the disease.

The Pima had long wanted the water back and by the late 1980s, buoyed by trends in water-rights laws and a new brand of reservation-born negotiators, serious talks began. Water claims are usually complicated, hotly disputed affairs in the warm, dry West. Add in issues of Indian rights and sovereignty and it is perhaps not surprising that it took more than 30 years to reach the settlement.

It provides the reservation 653,500 acre-feet of water a year (an acre-foot is equivalent to about one family’s water use annually) coming from a mix of sources, with the Central Arizona Project tapping the Colorado River providing the biggest share. It also includes the $680 million to rebuild the irrigation system and to provide drainage, water monitoring and other benefits.It may seem a staggering amount of water, but federal and state officials said the reservation might have gained much more had it prevailed in court. It had asked for two million acre-feet, for one thing, based in part on documented use of the river going back to the 16th century. “It wasn’t a matter of if the tribes would win at trial,” said Gregg Houtz, the lead lawyer for the state’s Department of Water Resources in the settlement agreement. “It was a matter of how much.”

A big reason for settling, federal and state officials said, was to provide all sides certainty and clarity over how much water they will have now and in the coming decades. The reservation had already received or been promised about two-thirds of the water in the settlement, but, Mr. Houtz said, the additional water makes the Gila River Indians major water brokers as they lease some of it to cities and could vault the tribe to the top of farming in the state as well. The reservation has discussed farming some 150,000 acres, 40 percent of its 372,000 acres, but it is planning to avoid large housing developments. Said Rodney B. Lewis, the community’s former general counsel who helped negotiate the settlement, “we will be an island” amid suburban Phoenix’s sea of subdivisions.

The Gila River itself will remain largely dry; the water from the settlement will be delivered and distributed through a system of culverts and canals. And it will take much effort to reverse the legacy of poor health, though programs abound, intended for the young and the old, to combat diabetes. Medical officials are particularly alarmed at a rise in the rate of the disease among the young.

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Georgina Charles, 74, a diabetes sufferer, attends a regular exercise class for the elderly and says she watches what she eats, but acknowledges that she and others find it difficult to ignore detrimental food. One recent night she prepared traditional fry bread for a community event, substituting vegetable oil for the usual lard but laughing at the obvious. “It’s not too good for us, but we eat it,” Ms. Charles said.

Just a few miles away, the community gardeners adjusted hoses as the weekly delivery of water arrived and took stock of their crops. The water they use comes from an underground aquifer, but they are contemplating how they might tap into the settlement water and promote natural foods. Schoolchildren visit the garden and some of its produce ends up on tables at community functions but, members said, more needs to be done to take full advantage of the water. “When we lost that water, we lost generations of farming,” said Janet Haskie, a community gardener. “Then people had the attitude like, ‘They owe us. I’m going to take these rations.’ So now we have to start over again, a little at a time.”

19. What is the likely future of tribal water rights?

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In re GENERAL ADJUDICATION OF ALL RIGHTS TO USE WATER IN THE GILA RIVER SYSTEM AND SOURCE Supreme Court of Arizona 195 Ariz. 411, 989 P.2d 739 (1999)

FIDEL, Judge:

In the third of a series of interlocutory opinions in this comprehensive general stream adjudication, we address two questions: Do federal reserved water rights extend to groundwater (underground water) that is not subject to prior appropriation under Arizona law? Are federal reserved rights holders entitled to greater protection from groundwater pumping than are water users who hold only state law rights? We answer both questions in the affirmative.

I. PROCEDURAL HISTORY

The purpose of a comprehensive general stream adjudication is to determine "the nature, extent and relative priority of the water rights" of all who use the water of a "river system and source." Ariz. Rev. Stat. Ann. ("A.R.S.") §§ 45-251(2), 252(A); see also U.S.C. § 666 (1982). The underlying adjudication is a consolidated effort to achieve that purpose with respect to waters within the Upper Salt, Verde, Upper Gila, Lower Gila, Agua Fria, Upper Santa Cruz, and San Pedro watersheds. The Little Colorado watershed is the subject of a similar adjudication.

The pertinent waters within a "river system and source" are (1) those subject to prior appropriation and (2) those subject to claims based on federal law. A.R.S. § 45-251(4). A substantial task is to determine the extent to which each category extends to hydrologically connected underground water pumped from wells. In re the General Adjudication of All Rights to Use Water in the Gila River Sys. ("Gila River II"), 175 Ariz. 382, 386, 857 P.2d 1236, 1240 (1993).

A detailed procedural history of this case may be found in Gila River II, 175 Ariz. at 384-86, 857 P.2d at 1238-40, and In the Matter of the Rights to the Use of the Gila River ("Gila River I"), 171 Ariz. 230, 232-33, 830 P.2d 442, 444-45 (1992).1 It suffices here to state that in 1988 the trial court issued rulings on a number of questions concerning the relationship of groundwater and surface water. The trial court's ruling generated multiple petitions for

1 For additional procedural history, see Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 558-60, 77 L. Ed. 2d 837, 103 S. Ct. 3201 (1983), and United States v. Superior Court, 144 Ariz. 265, 270-71, 697 P.2d 658, 663-64 (1985), which jointly uphold the jurisdiction of the Arizona courts to include federal parties in a comprehensive general stream adjudication.

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interlocutory review, leading this court to accept six issues for review.2 We resolved issue 1 in Gila River I, upholding procedures that the trial court established to make this massive case more manageable. 171 Ariz. at 243-44, 830 P.2d at 455-56. We resolved issue 2 in part in Gila River II; there we affirmed the conclusion that water constituting "subflow" is the only underground water subject to appropriation under Arizona law, but disapproved the standard that the trial court adopted to distinguish subflow from non-appropriable "percolating groundwater," remanding the standard to be reshaped after further hearings. 175 Ariz. at 392-93, 857 P.2d at 1246-47.

After issuing Gila River II, we interrupted consideration of the six issues and accepted special action jurisdiction to resolve a challenge to the constitutionality of Arizona statutes enacted in 1995 that attempted comprehensive procedural and substantive changes to Arizona's surface water law. San Carlos Apache Tribe v. Super. Ct., 193 Ariz. 195, 972 P.2d 179 (1999) (holding retroactive changes unconstitutional in substantial part). We then took jurisdiction of another special action to determine whether the trial court may consult ex parte with the Department of Water Resources in its statutory role as technical adviser to the court. See San Carlos Apache Tribe v. Bolton, 194 Ariz. 68, 977 P.2d 790 (1999) (rejecting petition to disqualify trial court and director of Department). We now return to the original six issues and resolve issues 4 and 5.

II. ON GROUNDWATER, SURFACE WATER, SUBFLOW, AND THE RESERVED WATER RIGHTS DOCTRINE

The trial court held that federal "reserved rights" apply not only to surface water and subflow, appropriable categories under Arizona law, but also to non-appropriable groundwater. The court also held that federal reserved rights holders are entitled to protection from any off-reservation groundwater pumping that "significantly diminishes" the amount of water available

2 We defined the six issues as follows:

1. Do the procedures for filing and service of pleadings adopted by the trial court in its Pre-trial Order Number 1 comport with due process under the United States and Arizona Constitutions?

2. Did the trial court err in adopting its 50%/90 day test for determining whether underground water is "appropriable" under A.R.S. § 45-141?

3. What is the appropriate standard to be applied in determining the amount of water reserved for federal lands?

4. Is non-appropriable groundwater subject to federal reserved rights?

5. Do federal reserved rights holders enjoy greater protection from groundwater pumping than holders of state law rights?

6. Must claims of conflicting water use or interference with water rights be resolved as part of the general adjudication?

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to satisfy the purpose of the reservation. These rulings attribute more expansive water rights to federal claimants than to those asserting claims pursuant only to state law. To explain this aspect of the trial court's decision and to set the context for our discussion, we review some history and terms.

A. Arizona's Bifurcated System of Water Rights

In Gila River II, we summarized the bifurcation of Arizona law respecting surface water and groundwater:

Rights associated with water found in lakes, ponds, and flowing streams—surface water—have been governed by the doctrine of prior appropriation. . . . On the other hand, underground water has been governed by the traditional common law notion that water percolating generally through the soil belongs to the overlying landowner, as limited by the doctrine of reasonable use.3

175 Ariz. at 386, 857 P.2d at 1240.

Arizona does not entirely confine the doctrine of prior appropriation to surface waters. Our courts have extended prior appropriation to a category known as "subflow," historically defined as "those waters which slowly find their way through the sand and gravel constituting the bed of the stream, or the lands under or immediately adjacent to the stream, and are themselves a part of the surface stream." Id. at 387, 857 P.2d at 1241 (quoting Maricopa County Mun. Water Conserv. Dist. No. 1 v. Southwest Cotton Co., 39 Ariz. 65, 96, 4 P.2d 369, 380 (1931) ("Southwest Cotton")). The notion of "subflow" is significant in Arizona law, for it serves to mark a zone where water pumped from a well so appreciably diminishes the surface flow of a stream that it should be governed by the same law that governs the stream. Id. at 96-97, 4 P.2d at 380-81.

Yet the notion of subflow is an artifice, as we acknowledged in Gila River II, that rests on a hydrological misconception. 175 Ariz. at 389, 857 P.2d at 1243. To pump well water from "lands under or immediately adjacent to a stream" is not, we now know, the only pumping that may significantly diminish surface flow. The hydrological connection of groundwater and surface water is sometimes such that groundwater pumped more distantly within an aquifer may have comparable effect. Leshy and Belanger4 explain:

3 The doctrine of reasonable use permits an overlying landowner to capture as much groundwater as can reasonably be used upon the overlying land and relieves the landowner from liability for a resulting diminution of another landowner's water supply. See Bristor v. Cheatham, 75 Ariz. 227, 237-38, 255 P.2d 173, 180 (1953); see generally R. Beck, 1 Waters & Water Rights §§ 4.01 at 66, 4.05(c) at 72 (1991 & Supp. 1998).

4 In Gila River II, we referred those seeking a detailed history of the evolution of Arizona water law to John D. Leshy & James Belanger, Arizona Law Where Ground and Surface Water Meet, 20 Ariz. St. L. J. 657 (1988).

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When water is pumped from an aquifer by means of a well, it creates what is known as a "cone of depression." This is caused by the groundwater in the aquifer moving toward the well. If the material in the aquifer has a high transmissivity value, the cone of depression will be wide and shallow. If, on the other hand, the aquifer does not easily transmit water, the cone of depression will be steep and narrow. If water is pumped continuously from the well, the cone of depression will become larger. If the water table is close enough to the earth's surface to allow this cone to cut into a surface stream, water from the stream would directly infiltrate into the ground, following the slope of the cone of depression until it reached the well. Even if the cone did not intersect the stream directly, it could affect the amount of water in the stream by intercepting water that would otherwise migrate toward the stream. This would cause less water to be available in the stream bed. If water were removed by pumping from a well and none were reintroduced, the water table would decline. If several wells were pumping, there would be a more rapid decline. Any time the rate of water withdrawn from an aquifer exceeds the rate of recharge, the water table will decline.

Leshy & Belanger, 20 Ariz. St. L.J. at 663-64.

Conforming their law to hydrological reality, most prior appropriation jurisdictions by now have abandoned the bifurcated treatment of ground and surface waters and undertaken unitary management of water supplies. Id. at 659-60. In Gila River II, however, we declined to do so, explaining:

It is too late to change or overrule [Southwest Cotton]. . . . More than six decades have passed since Southwest Cotton was decided. The Arizona legislature has erected statutory frameworks for regulating surface water and groundwater based on Southwest Cotton. Arizona's agricultural, industrial, mining, and urban interests have accommodated themselves to those frameworks. Southwest Cotton has been part of the constant backdrop for vast investments, the founding and growth of towns and cities, and the lives of our people.

Gila River II, 175 Ariz. at 389, 857 P.2d at 1243. Limiting ourselves to "interpreting Southwest Cotton, not refining, revising, correcting, or improving it," we "reaffirmed Southwest Cotton's narrow concept of subflow" and directed the trial court to devise a subflow standard on remand that "turns on whether the well is pumping water that is more closely associated with the stream than with the surrounding alluvium." Id. at 389-93, 857 P.2d at 1243-47.

B. All Water Appropriable and All Water Subject to Claims Based Upon Federal Law

A subflow standard, once it has been established, will serve to identify well-users who pump water subject to prior appropriation. But this adjudication is not limited to water subject to prior appropriation; it extends also to water subject to claims based on federal law. An adjudication such as this cannot achieve its comprehensive purpose without quantifying and prioritizing federal, as well as state law, claims.

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Since there is not enough water to meet everyone's demands, a determination of priorities and a quantification of the water rights accompanying those priorities must be made. Obviously, such a task can be accomplished only in a single proceeding in which all substantial claimants are before the court so that all claims may be examined, priorities determined, and allocations made.

Approximately two-thirds of the land in Arizona is federally held, much of it in trust for Indian tribes. See Arizona Statistical Abstract 173-177 (1993 ed.). The McCarran Amendment permits us to include federal claimants in the adjudication, for it permits the United States to participate in state court proceedings that comprehensively adjudicate "rights to the use of water of a river system or other source." 43 U.S.C. § 666(a). In conformity with the McCarran Amendment, our general adjudication statute, A.R.S. § 45-252(A), authorizes determination of "the nature, extent and relative priority of the water rights of all persons in the river system and source." And A.R.S. § 45-251(4), as we have indicated, defines "river system and source" to include not only appropriable water, but "all water subject to claims based upon federal law."

The rub is that, in order to adjudicate and quantify water rights based upon federal law, the Arizona courts must afford federal claimants the benefit, when state and federal law conflict, of federal substantive law. See Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 571, 77 L. Ed. 2d 837, 103 S. Ct. 3201 (1983) (state courts must apply federal substantive law to measure federal rights in state adjudication); accord United States v. Super. Ct., 144 Ariz. at 276-77, 697 P.2d at 669-70. And the particular issues that we now consider arise pursuant to a doctrine of federal substantive law known variously as the "reserved water rights," the "reserved rights," or the "implied reservation" doctrine.

* * *

III. DO FEDERAL RESERVED RIGHTS EXTEND TO GROUNDWATER?

Moving from background to foreground, we consider the trial court's conclusion that the reserved water rights of federal claimants--when measured by federal substantive law--are not constrained by Arizona's bifurcated treatment of surface water and groundwater. According to the trial court, federal law establishes a reserved right to groundwater, if and to the extent that groundwater may be necessary to accomplish the purpose of a federal reservation.

The state law parties respond that the Supreme Court has never applied reserved rights to groundwater and that this court, if not obliged to do so, should decline to apply a federal doctrine so disjunctive to established doctrines of our state. In support of this argument, the state law parties cite the example of In re All Rights to Use Water in the Big Horn River System, 753 P.2d 76 (Wyo. 1988). In that general stream adjudication, the Supreme Court of Wyoming recognized that "the logic which supports a reservation of surface water to fulfill the purpose of the reservation also supports reservation of groundwater." Id. at 99. Yet the court declined to find a reserved right to groundwater, stating in explanation only that it had been cited no previous decision which did so. Id. at 99-100.

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We can appreciate the hesitation of the Big Horn court to break new ground, but we do not find its reasoning persuasive. That no previous court has come to grips with an issue does not relieve a present court, fairly confronted with the issue, of the obligation to do so. Moreover, as the Big Horn court acknowledged, we do not write on a blank slate.

* * *

In Cappaert, the Court applied the reserved rights doctrine in a case that turned on the hydrological connection of surface water and groundwater. There, upon application by the United States, a federal district court had issued, and the Ninth Circuit had affirmed, an injunction restricting pumping from wells drilled on private ranch land bordering the Devil's Hole National Monument. The wells drew water from the same underground source as a pool within the monument where lived an endangered breed of fish. One purpose of the monument was to preserve the pool and its rare fish. 426 U.S. at 141. Upon evidence that pumping from the wells had lowered the pool's surface to a level that inhibited the spawning of the fish, the Supreme Court affirmed the district court's injunction, which restricted the ranch's pumping to the extent necessary to maintain the pool at a water level that sufficed to support the fish. Id.

Although the Ninth Circuit, in its Cappaert opinion, expressly determined that the reserved rights doctrine extends to groundwater, the Supreme Court found it unnecessary to reach that question, explaining that the water in the pool was surface water. Cappaert, 426 U.S. at 142. Yet upon evidence that "federal water rights were being depleted because . . . the 'groundwater and surface water are physically interrelated as integral parts of the hydrologic cycle,'" the Court held that "the United States can protect its water from subsequent diversion, whether the diversion is of surface or groundwater." Id. at 142-43 (quoting C. Corker, Groundwater Law, Management and Administration, National Water Commission Legal Study No. 6, p. xxiv (1971)).

In Cappaert, as before, the Supreme Court left the question of a reserved right to groundwater unresolved. The Court's decisions, however, provide guideposts toward our holding that such a right exists.

We find one guidepost in Winters, where the Court stressed that the arid lands of the Fort Belknap Reservation could not be made "inhabitable and capable of growing crops" without an implicit reservation of Milk River waters. Winters, 207 U.S. at 569. We find a similar guidepost in Arizona v. California, where the Court declared it "impossible to believe" that those who created the Colorado River Indian Reservation "were unaware that most of the lands were of the desert kind--hot, scorching sands--and that water from the [Colorado River and its tributaries] would be essential to the life of the Indian people and to the animals they hunted and the crops they raised." Arizona v. California, 373 U.S. at 599. The reservations considered in those cases depended for their water on perennial streams. But some reservations lack perennial streams and depend for present or future survival substantially or entirely upon pumping of underground water. We find it no more thinkable in the latter circumstance than in the former that the United States reserved land for habitation without reserving the water necessary to sustain life.

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We find another guidepost to decision in the Supreme Court's association of surface and groundwater in Cappaert as "integral parts of the hydrologic cycle." Cappaert, 426 U.S. at 142. True, the Court identified the waters to be protected as the surface waters of the pool in Devil's Hole. But in contrast to prior cases where the use to be enjoined was an upstream diversion of surface waters, in Cappaert the use to be enjoined was a pumping of groundwater from beneath adjoining land. The Court declined to differentiate one means of diversion from another. Instead, the Court held that "the United States can protect its water from subsequent diversion, whether the diversion is of surface or groundwater." Id. at 143. While Cappaert bears most directly upon our discussion of issue 5 in Part IV of this opinion, we find it helpful to our resolution of the present issue as well. That federal reserved rights law declines to differentiate surface and groundwater--that it recognizes them as integral parts of a hydrologic cycle--when addressing the diversion of protected waters suggests that federal reserved rights law would similarly decline to differentiate surface and groundwater when identifying the water to be protected.

In summary, the cases we have cited lead us to conclude that if the United States implicitly intended, when it established reservations, to reserve sufficient unappropriated water to meet the reservations' needs, it must have intended that reservation of water to come from whatever particular sources each reservation had at hand. The significant question for the purpose of the reserved rights doctrine is not whether the water runs above or below the ground but whether it is necessary to accomplish the purpose of the reservation.

The state law parties argue, however, that even if the reserved rights doctrine applies equally in principle to groundwater as to surface water, we should decline to extend the doctrine to groundwater out of deference to state water law. Where federal rights are at issue, a state court may adopt state law as the rule of decision if to do so would not frustrate or impair a federal purpose. See United States v. Kimbell Foods, Inc., 440 U.S. 715, 728-29, 59 L. Ed. 2d 711, 99 S. Ct. 1448 (1979). Such is not the case here. To the contrary, the Supreme Court has defined the reserved rights doctrine as an exception to Congress's deference to state water law. See United States v. New Mexico, 438 U.S. 696, 714, 57 L. Ed. 2d 1052, 98 S. Ct. 3012 (1978); accord Cappaert, 426 U.S. at 145; see also United States v. Rio Grande Dam & Irrig. Co., 174 U.S. 690, 43 L. Ed. 1136, 19 S. Ct. 770, 775 (1899) (state law cannot be applied to destroy the federal government's right to water on its lands).

In Winters, the Supreme Court acknowledged the extensive cultivation, construction, and development that Montana settlers had undertaken in reliance upon diversions of water accomplished pursuant to state law. 207 U.S. at 569-70. Had the Court deferred to state law, the settlers would have prevailed. Instead, the Court concluded that the United States had exercised its power "to reserve the waters and exempt them from appropriation under the state laws." Id. at 577. In Cappaert, similarly, the Court acknowledged the extensive investment that the ranch land parties had made and the substantial employment generated by their wells. 426 U.S. at 133. The State Engineer, applying state law, had permitted the pumping to continue, finding in part that further economic development served the public interest. Id. at 134-35. The Supreme Court, however, concluded that "determination of reserved water rights is not governed by state law but derives from the federal purpose of the reservation." Id. at 145.

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It is apparent from the case law that we may not withhold application of the reserved rights doctrine purely out of deference to state law. Rather, we may not defer to state law where to do so would defeat federal water rights.

The state law parties next argue, however, that deference to state law in this case would not defeat federal water rights. Specifically, they maintain that there has never been a need to reserve groundwater in a state that provides all overlying landowners an equal right to pump as much groundwater as they can put to reasonable use upon their land. Cf. Wilson v. Omaha Indian Tribe, 442 U.S. 653, 674, 61 L. Ed. 2d 153, 99 S. Ct. 2529 (1979) (court may borrow state law as rule of decision where under the circumstances there is no reason for beneficiaries of a federal right to have a privileged position over others).

This argument, however, overlooks that federal reserved water rights are by nature a preserve intended to "continue[] through years." See Winters, 207 U.S. at 577. In Arizona v. California, the Supreme Court affirmed that an implied reservation includes sufficient waters "to satisfy the future as well as the present needs of the Indian Reservations." Arizona v. California, 373 U.S. at 600. The Court added that the reservation of waters applies to the "future requirements" of other types of federal reservation as well. Id. at 601. A theoretically equal right to pump groundwater, in contrast to a reserved right, would not protect a federal reservation from a total future depletion of its underlying aquifer by off-reservation pumpers. Cf. Washington Com. Passenger State Fishing Vessel Ass'n, 443 U.S. 658, 676 n.22, 61 L. Ed. 2d 823, 99 S. Ct. 3055 (1979) ("In light of the far superior numbers, capital resources, and technology of the non-Indians, the concept of the Indians' 'equal opportunity' to take advantage of a scarce resource is likely in practice to mean that the Indians' 'right of taking fish' will net them virtually no catch at all.")

Under the "reasonable use" doctrine, Arizona has consumed far more groundwater than nature can replenish. See Arizona Dep't Water Resources, Arizona Water Resources Assessment: Vol. 1, Inventory and Analysis 9 (1994); Philip R. Higdon & Terence W. Thompson, The 1980 Arizona Groundwater Management Code, 1980 Ariz. St. L.J. 621, 623. The Department of Water Resources presented evidence to the trial court in this case of streams in transition from perennial to intermittent within the San Pedro and Upper San Pedro watersheds, of others nearing an ephemeral character, and of others in geographical "retreat." See Arizona Dep't Water Resources, Gila River System Groundwater-surface Water Interaction Study 31-32 (1987). Within the Lower Gila River watershed, groundwater tables have been so lowered as to sever the connection between ground and surface water. See Leshy & Belanger, supra, at 665-66. Some Indian reservations have been entirely "dewatered" by off-reservation pumping. See Gila River Pima-Maricopa Indian Community v. United States, 9 Cl. Ct. 660, 665-66 (1986) (federal inaction and lack of tribal resources have enabled off-reservation developers to pump aquifers underlying some Indian reservations dry before the tribes could exercise their opportunity to pump groundwater). We therefore cannot conclude that deference to Arizona's law--and to the opportunity it extends all landholders to pump as much groundwater as they can reasonably use--would adequately serve to protect federal rights.

For the foregoing reasons, we hold that the trial court correctly determined that the federal reserved water rights doctrine applies not only to surface water but to groundwater. We

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decide this issue in the abstract at this time as a necessary step in determining the scope of interests to be encompassed by this adjudication. We do not, however, decide that any particular federal reservation, Indian or otherwise, has a reserved right to groundwater. A reserved right to groundwater may only be found where other waters are inadequate to accomplish the purpose of a reservation. To determine the purpose of a reservation and to determine the waters necessary to accomplish that purpose are inevitably fact-intensive inquiries that must be made on a reservation-by-reservation basis. See United States v. New Mexico, 438 U.S. at 700.

Likewise, we do not now attempt to impose a standard upon the trial court for determining the purpose of any reservation. That standard, in our judgment, is not well-suited to abstract declaration and should instead emerge from testing in the solid context of the facts.

IV. PROTECTION AGAINST OFF-RESERVATION PUMPING

Next is the question what level of protection federal reserved right holders may claim against groundwater pumping that depletes their water supply. Are they limited, as the state law parties contend, to such protection as state law offers to state and private appropriators, or did the trial court correctly determine that the federal reserved right entails whatever broader protection may be necessary to maintain sufficient water to accomplish the purpose of a reservation?

We answer this question first with respect to federal reservations that enjoy a reserved right to surface waters. As we have indicated in previous discussion, the common law of Arizona does not permit surface appropriators to protect their source of surface waters from depletion by groundwater pumping unless that pumping draws from the relatively narrow category of "subflow." More distant pumping within a common aquifer is governed by the relatively unfettered doctrine of reasonable use. Thus, for example, if Cappaert had arisen in Arizona, the application of state law might have precluded any restriction of adjoining pumping and have permitted Devil's Hole to be pumped dry.

The Salt River Project points out, however, that the standard for defining subflow awaits our further review and may conceivably be set sufficiently broadly to protect the surface water rights of some or all of the federal reservations. We acknowledge that possibility, but at this stage of the adjudication we must provide for the contrary possibility as well. The question before us is not whether any particular reservation is now entitled to broader protection than state law provides. The question is rather whether a federal reservation may invoke broader protection than state law provides if state law turns out to be inadequate to preserve the waters necessary to accomplish the purpose of the reservation.

In our view, Cappaert provides an explicit answer to that question. First, Cappaert tells us that "determination of reserved water rights is not governed by state law but derives from the federal purpose of the reservation." 426 U.S. at 145. Second, it tells us that "the United States can protect its water from subsequent diversion, whether the diversion is of surface or groundwater." Cappaert, 426 U.S. at 143.

What Cappaert holds with respect to the protection of surface waters, our discussion in Part III enables us to apply to the protection of groundwater as well. We have held that the

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federal reserved right extends to groundwater when groundwater is necessary to accomplish the purpose of a federal reservation. We similarly hold that once a federal reservation establishes a reserved right to groundwater, it may invoke federal law to protect its groundwater from subsequent diversion to the extent such protection is necessary to fulfill its reserved right.

We thus affirm the trial court's conclusion that federal reserved rights holders enjoy greater protection from groundwater pumping than do holders of state law rights. We do not, however, read the case law to require a zero-impact standard of protection for federal reserved rights. The Supreme Court has repeatedly acknowledged that the reserved rights doctrine "reserves only that amount of water necessary to fulfill the purpose of the reservation, no more." Cappaert, 426 U.S. at 141; see also United States v. New Mexico, 438 U.S. at 700 n.4 (1978). In Cappaert, the Court affirmed an injunction "appropriately tailored . . . to minimal need, curtailing pumping only to the extent necessary to preserve an adequate water level at Devil's Hole." 426 U.S. at 141. If injunctions should ultimately prove necessary in this case, they shall likewise be appropriately tailored to minimal need.

* * *

V. CONCLUSION

In United States v. Superior Court we wrote, "In the scheme of priorities, the claims of the federal government . . . and of the Indians rank high. While the amount of water actually used by these entities may have been negligible until recent times, the magnitude of the right to use water on these lands has been far from negligible." 144 Ariz. at 270, 697 P.2d at 663. Today we add some greater definition to the rights we then described.

We recognize that our determination that reserved water rights may encompass groundwater threatens to disrupt the assumptions that underlie state law uses. State law parties may question how our present holding may be squared with our decision in Gila River II to retain Arizona's traditional bifurcation of the law of surface and groundwater. We are no less cognizant now than when we decided Gila River II that Arizona's agricultural, industrial, mining, and urban interests have accommodated themselves to the framework of Southwest Cotton. Gila River II, 175 Ariz. at 389, 857 P.2d at 1243. Yet there long has loomed the need--sometimes noted, sometimes wished away--for those same interests also to accommodate themselves to the water claims of the vast federal land holdings that surround them. For state law purposes in Gila River II, we found reason to retain a bifurcated framework despite the hydrological misconceptions upon which it rested. But federal law does not permit us that option in deciding the extent of federal reserved rights. As Leshy and Belanger wrote in summary of Cappaert, "For federal law, the question is one of hydrology, not legal compartmentalization." 20 Ariz. St. L.J. at 734.

We do not underestimate the burden that the State of Arizona will face in accommodating federal reserved water rights within its water resource management. Nor do we underestimate the burden that the trial court will face in adjudicating the extent and relative priority of such rights. Unless there is a comprehensive settlement, however, we must heed the lesson that "the

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best way out is always through."5 To solve the conflict and uncertainty that reserved rights engender, we must quantify them, for we may not ignore them. See Colville Confederated Tribes v. Walton, 647 F.2d 42, 48 (9th Cir. 1981); see also Mikel L. Moore & John B. Weldon, Jr., General Water-Rights Adjudication in Arizona: Yesterday, Today and Tomorrow, 27 ARIZ. L. REV. 709, 725 (1985) (the overarching purpose of the general stream adjudication statute is to provide the finality and certainty that can only be achieved through a determination of all claims to water within the basin).

We answer issues 4 and 5 as follows: Federal reserved rights extend to groundwater to the extent groundwater is necessary to accomplish the purpose of a reservation. Holders of federal reserved rights enjoy greater protection from groundwater pumping than do holders of state law rights to the extent that greater protection may be necessary to maintain sufficient water to accomplish the purpose of a reservation.

5 R. Frost, A Servant to Servants in Complete Poems of Robert Frost 83 (Holt, Rinehart and Winston ed. 1964).

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In re GENERAL ADJUDICATION OF ALL RIGHTS TO USE WATER IN THE GILA RIVER SYSTEM AND SOURCE Supreme Court of Arizona 201 Ariz. 307, 35 P.3d 68 (2001)

ZLAKET, Chief Justice.

We are presented with another issue in the Gila River general stream adjudication. * * * Today the court addresses issue 3: "What is the appropriate standard to be applied in determining the amount of water reserved for federal lands?"

PROCEDURAL HISTORY

In its September 1988 decision, the trial court stated that each Indian reservation was entitled to

such water as is necessary to effectuate the purpose of that reservation. While as to other types of federal lands courts have allowed controversy about what the purpose of the land is and how much water will satisfy that purpose, as to Indian reservations the courts have drawn a clear and distinct line. It is that the amount is measured by the amount of water necessary to irrigate all of the practicably irrigable acreage (PIA) on that reservation.

We review this determination utilizing a de novo standard.

DISCUSSION

A. Prior Appropriation and the Winters Doctrine

* * * Federal water rights are different from those acquired under state law. Beginning with Winters v. United States, 207 U.S. 564, 28 S. Ct. 207, 52 L. Ed. 340 (1908), the Supreme Court has consistently held that "when the Federal Government withdraws its land from the public domain and reserves it for a federal purpose, the Government, by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation." Cappaert v. United States, 426 U.S. 128, 138, 96 S. Ct. 2062, 2069, 48 L. Ed. 2d 523 (1976).

According to Winters and its progeny, a federal right vests on the date a reservation is created, not when water is put to a beneficial use. Arizona v. California, 373 U.S. 546, 600, 83 S. Ct. 1468, 1498, 10 L. Ed. 2d 542 (1963) [Arizona I]. Although this entitlement remains subordinate to rights acquired under state law prior to creation of the reservation, it is senior to the claims of all future state appropriators, even those who use the water before the federal holders. Cappaert, 426 U.S. at 138, 96 S. Ct. at 2069. In this sense, a federally reserved water right is preemptive. Its creation is not dependent on beneficial use, and it retains priority despite non-use.

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Our task is to determine the manner in which water rights on Indian lands are to be quantified. Consideration of this subject necessarily begins with the Winters case.6 * * *

B. Purpose

Generally, the "purpose of a federal reservation of land defines the scope and nature of impliedly reserved water rights." United States v. Adair, 723 F.2d 1394, 1419 (9th Cir. 1983). However, when applying the Winters doctrine, it is necessary to distinguish between Indian and non-Indian reservations.

The government may exercise total dominion over water rights on federal non-Indian lands. State of Montana ex rel. Greely v. Confederated Salish & Kootenai Tribes, 219 Mont. 76, 712 P.2d 754, 767 (Mont. 1985) ("The United States can lease, sell, quitclaim, release, encumber or convey its own federal reserved water rights."). But unlike those attached to Indian lands, which have reserved water rights for "future needs and changes in use," id., non-Indian reserved rights are narrowly quantified to meet the original, primary purpose of the reservation; water for secondary purposes must be acquired under state law. See New Mexico, 438 U.S. at 702, 98 S. Ct. at 3015. Thus, the primary purpose for which the federal government reserves non-Indian land is strictly construed after careful examination. The test for determining such a right is clear.

For each federal claim of a reserved water right, the trier of fact must examine the documents reserving the land from the public domain and the underlying legislation authorizing the reservation; determine the precise federal purposes to be served by such legislation; determine whether water is essential for the primary purposes of the reservation; and finally determine the precise quantity of water—the minimal need as set forth in Cappaert and New Mexico—required for such purposes.

Greely, 712 P.2d at 767 (quoting United States v. City & County of Denver, 656 P.2d 1, 20 (Colo. 1983)).

Indian reservations, however, are different. In its role as trustee of such lands, the government must act for the Indians' benefit. See United States v. Mitchell, 463 U.S. 206, 225-26, 103 S. Ct. 2961, 2972-73, 77 L. Ed. 2d 580 (1983). This fiduciary relationship is referred to as "one of the primary cornerstones of Indian law." Felix S. Cohen, Handbook of Federal Indian Law 221 (1982). Thus, treaties, statutes, and executive orders are construed liberally in the Indians' favor. County of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251, 269, 112 S. Ct. 683, 693, 116 L. Ed. 2d 687 (1992) (citations omitted). Such an approach is equally applicable to the federal government's actions with regard to water for Indian reservations. "The purposes of Indian reserved rights . . . are given broader interpretation in order to further the federal goal of Indian self sufficiency." Greely, 712 P.2d at 768 (citations omitted).

6 [The Court’s lengthy discussion of Winters, Arizona v. California, Cappaert, and New Mexico is omitted.—ed.]

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The parties dispute the purposes of the several Indian reservations involved in this case. The United States and the tribal litigants argue that federal case law has preemptively determined that every Indian reservation was established as a permanent tribal homeland. The state litigants disagree, contending instead that the trial court must analyze each tribe's treaty or enabling documentation to determine that reservation's individual purpose. We need not decide whether federal case law has preemptively determined the issue. We agree with the Supreme Court that the essential purpose of Indian reservations is to provide Native American people with a "permanent home and abiding place," Winters, 207 U.S. at 565, 28 S. Ct. at 208, that is, a "livable" environment. Arizona I, 373 U.S. at 599, 83 S. Ct. at 1497.

While courts may choose to examine historical documents in determining the purpose and reason for creating a federal reservation on non-Indian lands, the utility of such an exercise with respect to Indian reservations is highly questionable.7 This is so for a variety of reasons.

First, as pointed out by the state litigants, many Indian reservations were pieced together over time. For example, the boundaries of the Gila River Indian Community changed ten times from its creation in 1859 until 1915, resulting in overall growth from 64,000 to 371,422 acres. But some of the changes along the way actually decreased the size of the reservation or limited the scope of previous additions. If these alterations had different purposes, as the state litigants suggest, it might be argued that water reserved to a specific parcel could not be utilized elsewhere on the same reservation, or that water once available could no longer be accessed. Such an arbitrary patchwork of water rights would be unworkable and inconsistent with the concept of a permanent, unified homeland.

A second problem lies in the fact that congressional intent to reserve water for tribal land is not express, but implied. As Franks points out, "because the intent is merely imputed—that is, its historical reality is irrelevant for purposes of establishing reserved rights—it seems strained to impute an historical definition to that imputed intent for the purpose of quantifying an extremely valuable right to a scarce resource." Franks, supra note 7, at 563.

Courts construe Indian treaties according to the way in which the Indians themselves would have understood them. Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 196, 119 S. Ct. 1187, 1201, 143 L. Ed. 2d 270 (1999) (citations omitted); Greely, 712 P.2d at 763 (citations omitted). But the historical search for a reservation's purpose tends to focus only on the motives of Congress—tribal intent is easily and often left out of the equation. It is doubtful that any tribe would have agreed to surrender its freedom and be confined on a reservation without some assurance that sufficient water would be provided for its well-being.

7 One commentator, in fact, suggests that "the effort to inform the quantification of federal [Indian] reserved rights with historical considerations is futile and should be abandoned." Martha C. Franks, The Uses of the Practicably Irrigable Acreage Standard in the Quantification of Reserved Water Rights, 31 Nat. Resources J. 549, 563 (1991). While we generally agree with this observation, we believe that tribal history may play an important role in quantifying the amount of water necessary to fulfill an Indian reservation's purpose as a permanent homeland.

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The most recognizable difficulty with the historical approach is that many documents do not accurately represent the true reasons for which Indian reservations were created. It is well known that in the nineteenth century, the federal government made conflicting promises. On one hand, it offered white settlers free land, an abundance of resources, and safety if they would travel to and inhabit the West. The government also assured Indians that they would be able to live on their lands in peace. The promises to the tribes were not kept. As recognized in 1863 by the Superintendent of Indian Affairs, M. Steck, the invasion of white settlement caused the Apache Indian people to be

divested . . . of all their peculiar and former means of subsistence, in contending with a race who, under the circumstances, can feel no sympathy with them, [such that] the Indian must soon be swept from the face of the earth. If every red man were a Spartan, they would find it impossible to withstand this overpowering influx of immigration. Humanity and religion, therefore, demand of us that we interpose a barrier for their safety. . . .

S. Rep. 102-133, at 2 (1991). Even after this humanitarian "barrier" was imposed, however, General William T. Sherman made clear that "if [the Indians] wander outside they at once become objects of suspicion, liable to be attacked by the troops as hostile." Id. at 3. In a November 9, 1871 letter to the Secretary of War, Sherman closed by stating that General Crook, head of the Army in Arizona, "may feel assured that whatever measures of severity he may adopt to reduce these Apaches to a peaceful and subordinate condition will be approved by the War Department and the President." Id.

Despite what may be set forth in official documents, the fact is that Indians were forced onto reservations so that white settlement of the West could occur unimpeded. See Walter Rusinek, Note, A Preview of Coming Attractions? Wyoming v. United States and the Reserved Rights Doctrine, 17 Ecology L.Q. 355, 406 (1990) ("Cynical motives aside, the goals of the reservation system were to move Indian tribes out of the path of white settlement, provide them a homeland, and 'civilize' individual tribal members, often by attempting to transform them into yeoman farmers."). As recognized by former Arizona Congressman Morris K. Udall, the federal government "can be kindly described as having been less than diligent in its efforts to secure sufficient water supplies for the [Indian] community to develop its arable lands and achieve meaningful economic self-sufficiency and self-determination." 134 Cong. Rec. E562-02 (Mar. 8, 1988) (statement of Rep. Udall).

The trial court here failed to recognize any particular purpose for these Indian reservations, only finding that the PIA standard should be applied when quantifying tribes' water rights. It is apparent that the judge was leery of being "drawn into a potential racial controversy" based on historical documentation. Order, supra, at 17. But it seems clear to us that each of the Indian reservations in question was created as a "permanent home and abiding place" for the Indian people, as explained in Winters, 207 U.S. at 565, 28 S. Ct. at 208. This conclusion comports with the belief that "the general purpose, to provide a home for the Indians, is a broad one and must be liberally construed." Colville Confederated Tribes v. Walton, 647 F.2d 42, 47 (9th Cir. 1981). Such a construction is necessary for tribes to achieve the twin goals of Indian self-determination and economic self-sufficiency. See Yavapai-Prescott Indian Tribe Water

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Rights Settlement Act of 1994, Pub. L. 103-434, § 102(a)(1), 108 Stat. 4526, 4526; Fort McDowell Indian Community Water Rights Settlement Act of 1990, Pub. L. 101-628, § 402(a)(1), 104 Stat. 4469, 4480; Greely, 712 P.2d at 768.

Limiting an Indian reservation's purpose to agriculture, as the PIA standard implicitly does,

assumes that the Indian peoples will not enjoy the same style of evolution as other people, nor are they to have the benefits of modern civilization. I would understand that the homeland concept assumes that the homeland will not be a static place frozen in an instant of time but that the homeland will evolve and will be used in different ways as the Indian society develops.

In re General Adjudication of All Rights to Use Water in the Big Horn River System, 753 P.2d 76, 119 (Wyo. 1988) (Thomas, J., dissenting) [Big Horn I]; see also Walton, 647 F.2d at 47 (stating that courts consider Indians' "need to maintain themselves under changed circumstances" when determining a reservation's purpose).8

Other right holders are not constrained in this, the twenty-first century, to use water in the same manner as their ancestors in the 1800s. Although over 40% of the nation's population lived and worked on farms in 1880, less than 5% do today. U.S. Census Bureau, Historical Statistics of the United States, Colonial Times to 1970, 240, 457 (1975). Likewise, agriculture has steadily decreased as a percentage of our gross domestic product. See U.S. Census Bureau, Statistical Abstract of the United States, 881, 886 (1999) (demonstrating that agricultural output as a percentage of GDP has declined from 10.7% in 1930 to 2.84% in 1997). Just as the nation's economy has evolved, nothing should prevent tribes from diversifying their economies if they so choose and are reasonably able to do so. The permanent homeland concept allows for this flexibility and practicality. We therefore hold that the purpose of a federal Indian reservation is to serve as a "permanent home and abiding place" to the Native American people living there.

C. Primary-Secondary Purpose Test

Next arises the question of whether the primary-secondary purpose test applies to Indian reservations. In New Mexico, a case dealing with a national forest, the Supreme Court reaffirmed that "where water is necessary to fulfill the very purposes for which a federal reservation was created," it is implied that the United States reserved water for it. 438 U.S. at 702, 98 S. Ct. at 3015. However, where the "water is only valuable for a secondary use of the reservation," any right must be acquired according to state law. Id. All parties agree that this distinction applies to non-Indian federal reservations. The trial court here rejected the primary-secondary test, finding that the "rule is a little different for entrusted lands, Indian reservations." We agree.

8 Even where reservations were created so that tribes could engage in agricultural pursuits, Congress only envisioned this as "a first step in the 'civilizing' process." Walton, 647 F.2d at 47 n.9 (citing 11 Cong. Rec. 905 (1881)).

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It is true that some courts have utilized the primary-secondary purpose test or looked to it for guidance when dealing with Indian lands. See Adair, 723 F.2d at 1408 (stating that New Mexico is not directly applicable, but establishes "several useful guidelines"); Walton, 647 F.2d at 47 (applying the test); In re the General Adjudication of all Rights to Use Water in the Big Horn River System, 835 P.2d 273, 278-79 (Wyo. 1992) [Big Horn II] (following the test). Nevertheless, we believe the significant differences between Indian and non-Indian reservations preclude application of the test to the former. As Judge Canby has noted, "while the purpose for which the federal government reserves other types of lands may be strictly construed, the purposes of Indian reservations are necessarily entitled to broader interpretation if the goal of Indian self-sufficiency is to be attained." W. Canby, American Indian Law 245-46 (1981) (citation omitted); see also Yavapai-Prescott Indian Tribe Water Rights Settlement Act of 1994, Pub. L. 103-434, § 102(a)(1), 108 Stat. 4526 (declaring United States' policy "to promote Indian self-determination and economic self-sufficiency"); Greely, 712 P.2d at 767-68 (distinguishing Indian and non-Indian federally reserved rights, stating that Indian rights "are given broader interpretation in order to further the federal goal of Indian self-sufficiency"). Parenthetically, even if the New Mexico test were to apply, tribes would be entitled to the full measure of their reserved rights because water use necessary to the establishment of a permanent homeland is a primary, not secondary, purpose.

D. Quantifying Winters Rights

The Winters doctrine retains the concept of "minimal need" by reserving "only that amount of water necessary to fulfill the purpose of the reservation, no more." Cappaert, 426 U.S. at 141, 96 S. Ct. at 2071. The method utilized in arriving at such an amount, however, must satisfy both present and future needs of the reservation as a livable homeland. See Arizona I, 373 U.S. at 599-600, 83 S. Ct. at 1497-98; Winters, 207 U.S. at 577, 28 S. Ct. at 212.

E. The PIA Standard

The trial court in this matter held that each Indian reservation was entitled to "the amount of water necessary to irrigate all of the practicably irrigable acreage (P.I.A.) on that reservation." The PIA standard was developed by Special Master Rifkin in Arizona I, 373 U.S. 546, 83 S. Ct. 1468, 10 L. Ed. 2d 542 (1963). That case dealt with the water rights of similarly-situated tribes in Arizona, California, and Nevada. Without much amplification, the Supreme Court declared:

We also agree with the Master's conclusion as to the quantity of water intended to be reserved. He found that the water was intended to satisfy the future as well as the present needs of the Indian Reservations and ruled that enough water was reserved to irrigate all the practicably irrigable acreage on the reservations.

Id. at 600, 83 S. Ct. at 1498. Other courts have since adopted the PIA standard in quantifying reserved water rights for Indian tribes. See Walton, 647 F.2d at 47-48 (applying PIA "to provide a homeland for the Indians to maintain their agrarian society"); Greely, 712 P.2d at 764 (utilizing PIA to fulfill a reservation's agricultural purpose).

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PIA constitutes "those acres susceptible to sustained irrigation at reasonable costs." Big Horn I, 753 P.2d at 101. This implies a two-step process. First, it must be shown that crops can be grown on the land, considering arability and the engineering practicality of irrigation. See id. Second, the economic feasibility of irrigation must be demonstrated. See generally Arizona v. California, 460 U.S. 605, 103 S. Ct. 1382, 75 L. Ed. 2d 318 (1983) [Arizona II] (adopting the Special Master's PIA analysis requiring this methodology); Andrew C. Mergen & Sylvia F. Liu, A Misplaced Sensitivity: The Draft Opinions in Wyoming v. United States, 68 U. Colo. L. Rev. 683, 696 (1997) (acknowledging that, since Arizona II, the economic feasibility requirement in PIA analysis has "become the norm"); Rusinek, supra, at 371 (detailing the PIA process utilized by the Arizona II Special Master). This is accomplished by subjecting proposed irrigation projects to a cost-benefit analysis, "comparing the likely costs of the project to the likely financial returns. If the latter outweighs the former, the project can be found economically feasible, and the underlying land 'practicably irrigable'. . . ." Franks, supra note 7, at 553.

The United States and tribal litigants argue that federal case law has preemptively established PIA as the standard by which to quantify reserved water rights on Indian reservations. We disagree. As observed by Special Master Tuttle in his Arizona II report, "the Court did not necessarily adopt this standard as the universal measure of Indian reserved water rights. . . ." Id. at 556 n.40 (quoting Special Master's Report at 90 (Feb. 22, 1981)). Indeed, nothing in Arizona I or II suggests otherwise.

On its face, PIA appears to be an objective method of determining water rights. But while there may be some "value of the certainty inherent in the practicably irrigable acreage standard," Big Horn I, 753 P.2d at 101, its flaws become apparent on closer examination.

The first objection to an across-the-board application of PIA lies in its potential for inequitable treatment of tribes based solely on geographical location. Arizona's topography is such that some tribes inhabit flat alluvial plains while others dwell in steep, mountainous areas. This diversity creates a dilemma that PIA cannot solve. As stated by two commentators:

There can be little doubt that the PIA standard works to the advantage of tribes inhabiting alluvial plains or other relatively flat lands adjacent to stream courses. In contrast, tribes inhabiting mountainous or other agriculturally marginal terrains are at a severe disadvantage when it comes to demonstrating that their lands are practicably irrigable.

Mergen & Liu, supra, at 695. Tribes who fail to show either the engineering or economic feasibility of proposed irrigation projects run the risk of not receiving any reserved water under PIA. See, e.g., State ex rel. Martinez v. Lewis, 116 N.M. 194, 861 P.2d 235, 246-51 (N.M. Ct. App. 1993) (denying water rights to the Mescalero Apache Tribe, situated in a mountainous region of southern New Mexico, for failure to prove irrigation projects were economically feasible). This inequity is unacceptable and inconsistent with the idea of a permanent homeland.

Another concern with PIA is that it forces tribes to pretend to be farmers in an era when "large agricultural projects . . . are risky, marginal enterprises. This is demonstrated by the fact that no federal project planned in accordance with the Principles and Guidelines [adopted by the Water Resources Council of the Federal Government] has been able to show a positive benefit/

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cost ratio in the last decade [1981 to 1991]." Franks, supra, at 578. A permanent homeland requires water for multiple uses, which may or may not include agriculture. The PIA standard, however, forces "tribes to prove economic feasibility for a kind of enterprise that, judging from the evidence of both federal and private willingness to invest money, is simply no longer economically feasible in the West." Id.

Limiting the applicable inquiry to a PIA analysis not only creates a temptation for tribes to concoct inflated, unrealistic irrigation projects, but deters consideration of actual water needs based on realistic economic choices. We again agree with the analysis of Justice Richard V. Thomas in Big Horn I:

I would be appalled . . . if the Congress . . . began expending money to develop water projects for irrigating these Wyoming lands when far more fertile lands in the midwestern states now are being removed from production due to poor market conditions. I am convinced that . . . those lands which were included as practicably irrigable acreage, based upon the assumption of the construction of a future irrigation project, should not be included for the purpose of quantification of the Indian peoples' water rights. They may be irrigable academically, but not as a matter of practicality. . . .

753 P.2d at 119 (Thomas, J., dissenting).

The PIA standard also potentially frustrates the requirement that federally reserved water rights be tailored to minimal need. Rather than focusing on what is necessary to fulfill a reservation's overall design, PIA awards what may be an overabundance of water by including every irrigable acre of land in the equation.

For the foregoing reasons, we decline to approve the use of PIA as the exclusive quantification measure for determining water rights on Indian lands.

F. Proper Factors for Consideration

Recognizing that the most likely reason for PIA's endurance is that "no satisfactory substitute has emerged," Dan A. Tarlock, One River, Three Sovereigns: Indian and Interstate Water Rights, 22 Land & Water L. Rev. 631, 659 (1987), we now enter essentially uncharted territory. In Gila III, this court stated that determining the amount of water necessary to accomplish a reservation's purpose is a "fact-intensive inquiry that must be made on a reservation-by-reservation basis." 195 Ariz. at 420, 989 P.2d at 748, P31. We still adhere to the belief that this is the only way federally reserved rights can be tailored to meet each reservation's minimal need.

When Big Horn I went before the Supreme Court, one of the present state litigants, in an amicus brief, argued that there should be a "balancing of a myriad of factors" in quantifying reserved water rights. Rusinek, supra, at 397 (quoting Brief of Amicus Curiae Salt River Project Agric. Improvement & Power Dist. at 19, Wyoming v. United States, 492 U.S. 406, 109 S. Ct. 2994, 106 L. Ed. 2d 342 (1989)). During oral argument in the present case, counsel for the Apache tribes made a similar argument. Considering the objective that tribal reservations be

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allocated water necessary to achieve their purpose as permanent homelands, such a multi-faceted approach appears best-suited to produce a proper outcome.

Tribes have already used this methodology in settling water rights claims with the federal government. One feature of such settlements has been the development of master land use plans specifying the quantity of water necessary for different purposes on the reservation. See, e.g., S. Rep. 101-479 (1990) (Fort McDowell Indian Community utilized a land use plan in conjunction with its water rights settlement based on agricultural production, commercial development, industrial use, residential use, recreational use, and wilderness).

While we commend the creation of master land use plans as an effective means of demonstrating water requirements, tribes may choose to present evidence to the trial court in a different manner. The important thing is that the lower court should have before it actual and proposed uses, accompanied by the parties' recommendations regarding feasibility and the amount of water necessary to accomplish the homeland purpose. In viewing this evidence, the lower court should consider the following factors, which are not intended to be exclusive.

A tribe's history will likely be significant. Deference should be given to practices requiring water use that are embedded in Native American traditions. Some rituals may date back hundreds of years, and tribes should be granted water rights necessary to continue such practices into the future. An Indian reservation could not be a true homeland otherwise.

In addition to history, the court should consider tribal culture when quantifying federally reserved rights. Preservation of culture benefits both Indians and non-Indians; for this reason, Congress has recognized the "unique values of Indian culture" in our society. 25 U.S.C. § 1902 (1994) (recognizing the importance of culture when placing Indian children in foster care); see also 20 U.S.C. § 7801 (1994) (finding that education should "build on Indian culture"). Water uses that have particular cultural significance should be respected, where possible. The length of time a practice has been engaged in, its nature (e.g., religious or otherwise), and its importance in a tribe's daily affairs may all be relevant.

The court should also consider the tribal land's geography, topography, and natural resources, including groundwater availability. As mentioned earlier, one of the biggest problems with PIA is that it does not allow for flexibility in this regard. It has also been observed that "irrigation is one of the most inefficient and ecologically damaging ways to use water. . . . Increasing the use of water for irrigation runs counter to a historic trend in western water use—the transition from agricultural to less consumptive and higher-valued municipal and industrial uses." Rusinek, supra, at 410. This does not mean that tribes are prohibited from including agriculture/irrigation as part of their development plans. However, future irrigation projects are subject to a PIA-type analysis: irrigation must be both practically and economically feasible. Tribes should be free to develop their reservations based on the surroundings they inhabit. We anticipate that any development plan will carefully consider natural resources (including potential water uses), so that the water actually granted will be put to its best use on the reservation.

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In conjunction with natural resources, the court should look to a tribe's economic base in determining its water rights. Tribal development plans or other evidence should address, and the court should consider, "the optimal manner of creating jobs and income for the tribes [and] the most efficient use of the water. . . ." Id. at 397 (citing Brief of Amicus Curiae Salt River Project Agric. Improvement & Power Dist. at 19, Wyoming v. United States, 492 U.S. 406, 109 S. Ct. 2994, 106 L. Ed. 2d 342 (1989)). Economic development and its attendant water use must be tied, in some manner, to a tribe's current economic station. Physical infrastructure, human resources, including the present and potential employment base, technology, raw materials, financial resources, and capital are all relevant in viewing a reservation's economic infrastructure.

Past water use on a reservation should also be considered when quantifying a tribe's rights. The historic use of water may indicate how a tribe has valued it. Logically, tribal prioritization of past water use will affect its future development. For example, a tribe that has never used water to irrigate is less likely to successfully and economically develop irrigation projects in the future. This does not mean that Indians may not use their water allocations for new purposes on a reservation. However, any proposed projects should be scrutinized to insure that they are practical and economical. Such projects should also be examined to determine that they are, in fact, appropriate to a particular homeland.

While it should never be the only factor, a tribe's present and projected future population may be considered in determining water rights. We recognize that the Supreme Court has rejected any quantification standard based solely on the "number of Indians." Arizona II, 460 U.S. at 617, 103 S. Ct. at 1390. However, if a federally reserved water right is to be tailored to a reservation's "minimal need," as we believe it must, then population necessarily must be part of the equation. To act without regard to population would ignore the fact that water will always be used, most importantly, for human needs. Therefore, the number of humans is a necessary element in quantifying water rights. Such consideration is not at odds with the need to satisfy tribes' "future as well as . . . present needs." Arizona I, 373 U.S. at 600, 83 S. Ct. at 1498. Population forecasts are common in today's society and are recognized and relied upon by the legal system. See Hernandez v. Frohmiller, 68 Ariz. 242, 257, 204 P.2d 854, 864 (1949) (taking judicial notice of census population data); State ex rel. Corbin v. Sabel, 138 Ariz. 253, 256, 674 P.2d 316, 319 (App. 1983) (relying on a population estimate to find that a town could not file for incorporation). It is therefore proper to use population evidence in conjunction with other factors in quantifying a tribe's Winters rights.

The state litigants argue that courts should act with sensitivity toward existing state water users when quantifying tribal water rights. See New Mexico, 438 U.S. at 718, 98 S. Ct. at 3023 (Powell, J., dissenting in part) (concurring that the Winters doctrine "should be applied with sensitivity to its impact upon those who have obtained water rights under state law"). They claim that this is necessary because when a water source is fully appropriated, there will be a gallon-for-gallon decrease in state users' water rights due to the tribes' federally reserved rights. See Arizona II, 460 U.S. at 621, 103 S. Ct. at 1392; New Mexico, 438 U.S. at 705, 98 S. Ct. at 3016. When an Indian reservation is created, the government impliedly reserves water to carry out its purpose as a permanent homeland. See Winters, 207 U.S. at 566-67, 577, 28 S. Ct. at 208-09, 212. The court's function is to determine the amount of water necessary to effectuate this purpose, tailored to the reservation's minimal need. We believe that such a minimalist

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approach demonstrates appropriate sensitivity and consideration of existing users' water rights, and at the same time provides a realistic basis for measuring tribal entitlements.

Again, the foregoing list of factors is not exclusive. The lower court must be given the latitude to consider other information it deems relevant to determining tribal water rights. We require only that proposed uses be reasonably feasible. As with PIA, this entails a two-part analysis. First, development projects need to be achievable from a practical standpoint—they must not be pie-in-the-sky ideas that will likely never reach fruition. Second, projects must be economically sound. When water, a scarce resource, is put to efficient uses on the reservation, tribal economies and members are the beneficiaries.

CONCLUSION

We wish it were possible to dispose of this matter by establishing a bright line standard, easily applied, in order to relieve the lower court and the parties of having to engage in the difficult, time-consuming process that certainly lies ahead. Unfortunately, we cannot.

In a quote attributed to Mark Twain, it is said that "in the west, whiskey is for drinkin' and water is for fightin'." Nicholas Targ, Water Law on the Public Lands: Facing a Fork in the River, 12 Nat. Resources & Env't 14 (Summer 1997). While this remains true in parts of Arizona, it is our hope that interested parties will work together in a spirit of cooperation, not antagonism. "Water is far too ecologically valuable to be used as a political pawn in the effort to resolve the centuries-old conflict between Native Americans and those who followed them in settling the West." Rusinek, supra, at 412. This is especially so now, when the welfare and progress of our indigenous population is inextricably tied to and inseparable from the welfare and progress of the entire state.

The relevant portion of the September 9, 1988 order is vacated and the trial court is directed to proceed in a manner consistent with this opinion.