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. . ~ Court Cases of Interest An interesting opinion recently released by the Supreme Court of the State of Arizona. This opinion is part of a series of reviews, by the Arizona Supreme Court, on an earlier decision of a Maricopa County Superior Court judge in a large comprehensive general stream adjudication for the Gila River system which covers more than two-thirds of the State of Arizona. In this particular opinion, which is included in your Board folder under Tab 4, the Arizona Supreme Court analyzed the appropriate standard to be applied in determining the amount of water reserved for federal lands. Specifically, the Court looked at two types offederallands - Tribal reservations, and non-Indian federal reservations. As you are aware, the Winters doctrine holds that when the federal government withdraws lands from the public domain and reserves it for a federal purpose, the government also, by implication, reserves unappropriated water to the extent necessary to accomplish the purpose of the reservation. AdditionalIy, a federal right carries the date when the reservation was created, not when the water was put to beneficial use, and it retains its priority despite non-use. In the opinion, the Court evaluated the meaning and application of the "practicably irrigab Ie acreage" (PIA) standard which was developed by Special Master Simon H. Rifkind in Arizona v. California (373 U.S. 546) for the Indian reservation lands. The Court noted that this standard assumes that Tribes are limited to water uses associated with agricultural practices, and may be inequitably applied to Tribes with reservations in steep, mountainous areas. The Arizona Supreme Court believes that this potential "...inequity is unacceptable and inconsistent with the idea ofa permanent homeland." Also, the Court recognized that the PIA standard forces Tribes "...to pretend to be farmers in an era when large agricultural projects are risky, marginal enterprises." Consequently, the Court has devised a set of "proper factors for consideration," which require a fact-intensive inquiry be made on a reservation-by-reservation basis. The Arizona Supreme Court identified the folIowing factors for consideration: (I) the Tribe's historical water uses and practices; (2) the Tribal water uses that have particular cultural significance should be respected; (3) the geography, topography, and natural resources, including groundwater availability should be evaluated; (4) in the context of the Tribe's natural resources, an evaluation of the Tribe's economic base is important; (5) past water use on the reservation should be evaluated, and may indicate how the Tribe values water; and (6) an evaluation ofthe Tribe's present and projected future populations may be considered. The Court stated that this list of consideration factors is not exclusive, and that the lower Court (Maricopa County Superior Court) should "...be given the latitude to consider other information it deems relevant in determining tribal water rights." It will be interesting to see how the parties to the Gila Adjudication respond to this opinion, and whether it is appealed to the federal court system. 2