AZ Court Sets New Indian Water Rights Standard

The Arizona Supreme Court recently ruled that the quantification of Indian water rights can be based on other criteria than the practicably irrigable acreage (PIA) standard that has thus far prevailed. In its groundbreaking ruling, the Court stated that water rights allocations must respond to each reservation’s specific needs and not necessarily to a PIA formula that determines water allocation based on a reservations’s irrigation potential.

The PIA standard was cited by the U.S. Supreme Court in a 1963 water rights case involving tribes in Arizona, California and Nevada, and other courts subsequently adopted it. A Maricopa County Superior Court judge applied it in a 1988 ruling stating that each Indian reservation is entitled to water necessary to irrigate all acres practicable. The Arizona Supreme Court’s decision unanimously overturned that ruling.

The Arizona high court acknowledged that PIA appears reasonable on its surface, but its deficiencies become evident when considered as an across-the-board application to all reservations. For example, the standard overlooks geographic differences among reservations. Further, tribes take on the PIA-bestowed role and “pretend to be farmers,” and the standard “creates a temptation” for tribes to “concoct inflated, unrealistic irrigation projects,” Chief Justice Thomas A. Zlaket wrote for the court

Quantification must still be based on the “minimal need” of a reservation the court stated, but minimal need “must satisfy both present and future needs of the reservation as a livable homeland.” Courts considering water-rights cases must analyze each situation, with quantification based on “fact-intensive inquiry.” Factors to be considered include: actual water needs, tribal economic base, actual and proposed land uses, reservation topography and resources, tribal history and culture, historical use of water and projected population.

In some situations PIA may be an appropriate standard. Other options however may need to be examined to enable a tribe to pursue development possibilities other than agriculture. Such projects must be economically sound and “achievable from a practical standpoint — they must not be pie-in-the-sky ideas that will likely never reach fruition,” Zlaket wrote. “When water, a scarce resource, is put to efficient uses on the reservation, tribal economies and members are the beneficiaries.”

The court acknowledged the difficulty of applying its ruling. “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,” Zlaket wrote. “Unfortunately we cannot.”

John Thorson, former Special Master of the Gila River Adjudication, says of the Court’s action, “I think it is a major decision mainly because it furthers the discussion and debate about quantification of reserved rights ... I think the value of the Court’s decision is that it sets forth many of the problems with PIA and suggests a new approach, a more multifaceted approach to quantifying Indian water rights.”

Thorson says the Court is treading where no court has tread before, and he thinks its decision might act as a prod to other states in dealing with the PIA standard.

Thorson is uncertain about the decision’s likely effect on Indian water right settlements in the state. He says, “It may influence the dynamics of some of the negotiations. Depending upon the circumstances, tribal claims may be stronger or possibly weaker with this decision.” He thinks however that most of the state’s cases will probably settle without applying the new standard. As a result the standard may be applied rarely if at all in actual litigation.

The Court’s ruling came in deciding a decades-old water rights case in the Gila River Basin. Joining Zlaket in the ruling was fellow Justice Stanley G. Feldman and three Court of Appeal judges.

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