SUPREME COURT OF ARIZONA
En Banc
) Arizona Supreme Court
) No. WC-11-0001-IR
IN RE GENERAL ADJUDICATION )
OF ALL RIGHTS TO USE WATER IN ) Maricopa County Superior
THE GILA RIVER SYSTEM AND SOURCE ) Court Case Nos.: W-1, W-2,
) W-3 and W-4
) (Consolidated) (Gila)
IN RE GENERAL ADJUDICATION ) [Contested Case
OF ALL RIGHTS TO USE WATER IN ) No. W1-104]
THE LITTLE COLORADO RIVER SYSTEM )
AND SOURCE ) Apache County Superior
) Court Case No. 6417 (LCR)
) [Contested Case
) No. 6417-100]
)
)
) O P I N I O N
__________________________________)
Review from the Superior Court
in Apache County and Maricopa County
The Honorable Eddward P. Ballinger, Jr., Judge
AFFIRMED
________________________________________________________________
THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Thomas C. Horne, Attorney General
Theresa M. Craig, Assistant Attorney General
Attorneys for the State of Arizona
THE SPARKS LAW FIRM PC Scottsdale
By Joe P. Sparks
Laurel A. Herrmann
Attorneys for the San Carlos Apache Tribe and Tonto Apache Tribe
SALMON LEWIS & WELDON PLC Phoenix
By M. Byron Lewis
John B. Weldon, Jr.
Mark A. McGinnis
Attorneys for Salt River Project Agricultural Improvement and
Power District and Salt River Valley Water Users’ Association
SALMON LEWIS & WELDON PLC Phoenix
By Paul R. Orme
Attorney for Central Arizona Irrigation and Drainage District
and Maricopa-Stanfield Irrigation & Drainage District
SNELL & WILMER LLP Phoenix
By L. William Staudenmaier, III
Andrew M. Jacobs
Attorneys for Arizona Public Service Company, Freeport-
McMoran Corporation, Roosevelt Water Conservation District
POLSINELLI SHUGHART PC Phoenix
By Lucas J. Narducci
Margaret LaBianca
Attorneys for BHP Copper Inc.
ENGELMAN BERGER PC Phoenix
By William H. Anger
Attorney for City of Avondale, City of Chandler, City of
Glendale, City of Mesa, City of Scottsdale
BROWN & BROWN LAW OFFICES PC
By David Albert Brown St. Johns
Douglas E. Brown Eagar
Attorneys for City of Cottonwood, City of Show Low,
Franklin Irrigation District, Aztec Land and Cattle
Company Ltd.
BALLARD SPAHR LLP Phoenix
By Lee A. Storey
Sara V. Ransom
Attorneys for City of Flagstaff
GARY VERBURG, PHOENIX CITY ATTORNEY Phoenix
By Gary Verburg, City Attorney
Cynthia S. Campbell, Assistant City Attorney
Daniel L. Brown, Assistant City Attorney
Attorneys for City of Phoenix
MOYES SELLERS & HENDRICKS Phoenix
By Steven L. Wene
Attorney for City of Safford
GILA RIVER INDIAN COMMUNITY Sacaton
By Linus Everling
Thomas L. Murphy, Sr.
Attorneys for Gila River Indian Community
2
FENNEMORE CRAIG PC Phoenix
By Lauren J. Caster
Gregory Loyd Adams
Attorneys for ASARCO LLC and Catalyst Paper (Snowflake) Inc.
LAW OFFICE OF L. ANTHONY FINES PC Tucson
By L. Anthony Fines
Attorney for Gila Valley Irrigation District
NAVAJO NATION DEPARTMENT OF JUSTICE Window Rock
By Stanley M. Pollack
And
MCELROY MEYER WALKER & CONDON PC Boulder, CO
By Scott McElroy
Attorneys for Navajo Nation
MONTGOMERY & INTERPRETER PLC Scottsdale
By Susan B. Montgomery
Robyn L. Interpreter
Attorneys for Yavapai-Apache Nation
UNITED STATES DEPARTMENT OF JUSTICE Washington, DC
By Robert G. Dreher, Acting Assistant Attorney General
F. Patrick Barry
Mary Gabrielle Sprague
Attorneys for United States of America
ARIZONA DEPARTMENT OF WATER RESOURCES Phoenix
By Kenneth C. Slowinski
David S. Johnson
Attorneys for Amicus Arizona Department of Water Resources
________________________________________________________________
P E L A N D E R, Justice
¶1 The State of Arizona filed an interlocutory appeal
from an order issued in the general stream adjudications of the
Gila River System and Source and the Little Colorado River
System and Source. At issue is whether federal water rights
3
were impliedly reserved on lands granted by the United States
government to the State of Arizona to support education and
other public institutions (“State Trust Lands”). We accepted
review and now affirm the superior court’s ruling that there are
no implied federal reserved water rights for State Trust Lands.
I. HISTORICAL BACKGROUND
¶2 In 1787, the federal government established a policy
to support public schools in new territories. See Northwest
Ordinance, Act of Aug. 7, 1789, ch. 8, 1 Stat. 50, 51-52 n.(a)
(affirming the 1787 Act of the Continental Congress). Congress
furthered this policy by granting land from the public domain to
new territories and states to be used for educational purposes.
See Lassen v. Arizona ex rel. Ariz. Highway Dep’t, 385 U.S. 458,
460 (1967). When Congress established the New Mexico Territory,
which included the present State of Arizona, it “reserved for
the purpose of being applied to schools” township sections
sixteen and thirty-six. Act of Sept. 9, 1850, ch. 49, § 15, 9
Stat. 446, 452 (“Organic Act”). Four years later, Congress
“reserved for the establishment of a University” a grant of land
equal to two townships. Act of July 22, 1854, ch. 103, § 6, 10
Stat. 308, 309.
¶3 Congress gave these land grants to Arizona when it
separated the Arizona Territory from the New Mexico Territory.
Act of Feb. 24, 1863, ch. 56, 12 Stat. 664, 665. In 1881,
4
Congress provided the Arizona Territory with another grant of
seventy-two sections of land, “withdrawn from sale,” to support
a university. Act of Feb. 18, 1881, ch. 61, 21 Stat. 326.
¶4 In 1910, Congress passed the Arizona—New Mexico
Enabling Act (“Enabling Act”), which set forth the requirements
for the two territories to become states. Act of June 20, 1910,
ch. 310, 36 Stat. 557. The Enabling Act confirmed the prior
land grants and also granted sections two and thirty-two in
every township to support the common schools. Id. § 24, 36
Stat. at 572. It also provided “bulk” grants consisting of a
set number of acres for other specific purposes, including
universities; government buildings; prisons; insane asylums; a
school for the deaf and blind; normal schools; charitable,
penal, and reform institutions; agricultural and mechanical
colleges; a school of mines; military institutes; and the
payment of certain bonds. Id. § 25, 36 Stat. at 573.
¶5 In some instances, the particular sections granted to
support common schools (“section-in-place grants”) were no
longer available when the townships were finally surveyed
because those sections had been settled, reserved for Indian
tribes, or otherwise reserved or disposed of under federal law.
See Report of the State Land Commission of Arizona 16, 41-42, 67
(1912-1914) [hereinafter Land Comm’n Report]. To indemnify the
state for these preempted sections, Congress appropriated lands
5
of like quantity (“indemnity-in-lieu selections”) and authorized
the state to select and receive such lands. Act of Feb. 28,
1891, ch. 384, 26 Stat. 796, 796-97; Act of Feb. 26, 1859, ch.
58, 11 Stat. 385. The state acquired a fee interest in the
State Trust Lands upon completion of a survey for section-in-
place grants, and upon selection and approval by the Secretary
of the Interior (“Secretary”) for the bulk-grant and indemnity-
in-lieu selections. Enabling Act, §§ 24, 29, 36 Stat. at 572-
74, 575-76; see Andrus v. Utah (Andrus), 446 U.S. 500, 506-07
(1980); Land Comm’n Report at 13-14.
¶6 The Enabling Act required Arizona to hold granted
lands in trust:
[A]ll lands hereby granted, including those which,
having been heretofore granted to the said Territory,
are hereby expressly transferred and confirmed to the
said State, shall be by the said State held in trust,
to be disposed of in whole or in part only in manner
as herein provided and for the several objects
specified in the respective granting and confirmatory
provisions, and that the natural products and money
proceeds of any of said lands shall be subject to the
same trusts as the lands producing the same.
§ 28, 36 Stat. at 574. The Act set forth lease and sale
requirements that may be enforced by the federal government, the
state, or any Arizona citizen. Id. § 28, 36 Stat. at 574-75.
The state, however, was given exclusive control of the
beneficiary schools, colleges, and universities subject to the
condition that trust proceeds support only non-sectarian and
6
non-denominational institutions. Id. § 26, 36 Stat. at 573-74.
¶7 At statehood, Arizona consented to the terms and
conditions of the Enabling Act, Ariz. Const. art. 10, § 1, art.
20, ¶ 12, and eventually received almost eleven million acres of
State Trust Lands for the benefit of public institutions,
Lassen, 385 U.S. at 460. Congress expected the grants to
produce a fund through sale and use of the lands. Lassen, 385
U.S. at 463.
¶8 The state currently manages more than 9.2 million
acres of State Trust Lands, with approximately 1.4 million acres
in the Little Colorado River Basin and approximately 5.1 million
acres in the Gila River Basin. Although adjudication of claims
for waters in those two river systems continues, it is well
known that “the amount of surface water available [in Arizona]
is insufficient to satisfy all needs.” United States v.
Superior Court, 144 Ariz. 265, 270, 697 P.2d 658, 663 (1985).
II. PROCEDURAL BACKGROUND
¶9 These consolidated cases originated in proceedings
initiated by water rights claimants who filed with the Arizona
State Land Department (ASLD) in the 1970s, under then-existing
statutory adjudication procedures. See A.R.S. §§ 45-231 to
-245, repealed by 1979 Ariz. Sess. Laws, ch. 139, § 38, eff.
Apr. 24, 1979. Much has occurred since then. Now, a single
water judge presides over both adjudications. Ariz. Sup. Ct.
7
Order (Jan. 17, 2002); Ariz. Sup. Ct. Order (Dec. 19, 2000). A
special master initially conducts hearings and files reports
with the court. A.R.S. § 45-257 (2012). To date, more than
14,000 and 82,000 claims have been made in the Little Colorado
and Gila River adjudications respectively.1
¶10 The State moved for partial summary judgment in the
Little Colorado and Gila River adjudications to recognize
federal reserved water rights for State Trust Lands.2 After
briefing and oral argument, the special master concluded that
federal reserved water rights do not apply to such lands. He
submitted a report to the superior court, which adopted the
master’s findings and conclusions that support the court’s
ruling that the reserved water rights doctrine is inapplicable
to State Trust Lands. The court therefore denied the State’s
1
The adjudications’ histories are lengthy and complex. For
additional factual and procedural background, see Arizona v. San
Carlos Apache Tribe, 463 U.S. 545, 557–59 (1983); In re Rights
to the Use of the Gila River (Gila I), 171 Ariz. 230, 232–33,
830 P.2d 442, 444–45 (1992); Superior Court, 144 Ariz. at 269–
71, 697 P.2d at 662–64; John E. Thorson et al., Dividing Western
Waters: A Century of Adjudicating Rivers and Streams, Part II,
9 U. Denv. Water L. Rev. 299 (2006) (providing comprehensive
history of western water adjudications); and Joseph M. Feller,
The Adjudication That Ate Arizona Water Law, 49 Ariz. L. Rev.
405, 417-22 (2007) (reviewing litigation within Gila River
adjudication and Silver Creek contest within Little Colorado
adjudication). The superior court also provides information on
the adjudications at http://www.superiorcourt.maricopa.gov/
SuperiorCourt/GeneralStreamAdjudication.
2
For clarity, we refer to the State’s motions in the two
cases in the singular.
8
motion and granted the other claimants’ cross-motions on that
ground.
¶11 The State sought interlocutory review. We granted
review on this issue of statewide importance to determine
whether Congress impliedly reserved water rights on public land
granted in trust to the state. We have jurisdiction under
Article 6, Section 5(3) of the Arizona Constitution and the
Special Procedural Orders for Interlocutory Appeals and
Certifications.3
III. DISCUSSION
A. Standard of review
¶12 Summary judgment is appropriate if there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law. Ariz. R. Civ. P. 56(c). On
appeal, we view the evidence and reasonable inferences therefrom
in the light most favorable to the party opposing the motion.
Andrews v. Blake, 205 Ariz. 236, 240 ¶ 12, 69 P.3d 7, 11 (2003).
We review the superior court’s summary judgment rulings de novo.
In re the Gen. Adjudication of All Rights to Use Water in the
Gila River Sys. & Source (Gila VIII), 223 Ariz. 362, 367 ¶ 6,
3
Special Order (Sept. 26, 1989) (Gila River adjudication);
Special Order (June 1, 1994) (Little Colorado adjudication);
Order Clarifying the Special Order Filed June 1, 1994 (Mar. 6,
2000); see also Gila I, 171 Ariz. at 233 n.2, 830 P.2d at 445
n.2.
9
224 P.3d 178, 183 (2010).
B. Applicable rule of construction
¶13 To determine whether the federal reserved water rights
doctrine applies, we must first construe the federal legislation
granting trust land to Arizona. The State argues that the
superior court erred in narrowly construing the Organic Act and
Enabling Act grants. We disagree. Federal property grants
generally should be interpreted narrowly because “nothing passes
by mere implication.” Knoxville Water Co. v. Knoxville, 200
U.S. 22, 33-34 (1906); cf. Kadish v. Ariz. State Land Dep’t, 155
Ariz. 484, 495, 747 P.2d 1183, 1194 (1987) (recognizing
principle of construing “federal land grants in favor of the
[granting] government”), aff’d sub nom. ASARCO Inc. v. Kadish,
490 U.S. 605 (1989).
¶14 Under a limited exception to that general rule, courts
may liberally construe federal legislation “designed to aid the
common schools of states.” Wyoming v. United States, 255 U.S.
489, 508 (1921). For purposes of determining whether a land
grant includes implied rights, this exception applies only when
narrow construction of the grant would result in complete
failure of the grant’s purpose or render the land worthless.
See Lyon v. Gila River Indian Cmty., 626 F.3d 1059, 1072-73 (9th
Cir. 2010); Utah v. Andrus (Utah Right-of-Access Case), 486 F.
Supp. 995, 1002 (D. Utah 1979); cf. Andrus, 446 U.S. at 520
10
(reversing decision in which lower court liberally construed
federal legislation regarding indemnity-in-lieu selection).
¶15 This case raises no such concerns. As noted above,
supra ¶ 7, the purpose of State Trust Lands is to produce a fund
from sale and use of the lands to support common schools and
other public institutions designated by Congress. Lassen, 385
U.S. at 463; Lyon, 626 F.3d at 1073. The State has not argued
that, without federal reserved water rights, the State Trust
Lands will become worthless or incapable of producing a fund to
support their designated beneficiaries. Indeed, State Trust
Lands have without such rights produced revenue for a century.
See ASLD-History, http://www.land.state.az.us/history.htm; Land
Comm’n Report at 56-64.
¶16 We agree with other courts that have adopted a rule of
narrow construction for federal reserved water rights,
recognizing the doctrine’s disruptive effect in prior
appropriation jurisdictions. See United States v. City & Cnty.
of Denver, 656 P.2d 1, 26 (Colo. 1982); New Mexico ex rel. State
Eng’r v. Comm’r of Public Lands (New Mexico Commissioner), 200
P.3d 86, 95 (N.M. App. 2008) (“[I]n recognition of . . . the
potentially substantial and detrimental impact on state rights
in fully appropriated stream systems, courts must construe the
doctrine of federal reserved water rights narrowly.”), cert.
denied, 129 S. Ct. 2075 (2009).
11
C. Federal reserved water rights doctrine
¶17 Generally, water rights must be obtained under state
law, even on federal lands. Cal. Or. Power Co. v. Beaver
Portland Cement Co., 295 U.S. 142, 163-64 (1935). In Arizona,
groundwater is regulated by the Arizona Department of Water
Resources and governed by the doctrine of reasonable use.
A.R.S. § 45-451 et seq. (2012). The right to use surface water
and sub-flow is governed by the doctrine of prior appropriation,
§§ 45-141, -251(7), meaning the first to divert water and put it
to beneficial use has priority against later diverters, § 45-
151. See Ariz. Const. art. 17; In re the Gen. Adjudication of
All Rights to Use Water in the Gila River Sys. & Source (Gila
IV), 198 Ariz. 330, 334 ¶¶ 3-5, 9 P.3d 1069, 1073 (2000).
¶18 Under certain circumstances, however, the federal
government can reserve water rights on its lands, and those
rights have priority by operation of federal law. In re the
Gen. Adjudication of All Rights to Use Water in the Gila River
Sys. & Source (Gila III), 195 Ariz. 411, 416-17 ¶¶ 13-14, 423
¶ 43, 989 P.2d 739, 744-45, 751 (1999); N.M. Comm’r, 200 P.3d at
94 (citing Navajo Dev. Co. v. Sanderson, 655 P.2d 1374, 1379-80
(Colo. 1982)). Federal reserved water right holders can claim a
priority date based on the establishment of a federal
reservation regardless of whether the claimed water was actually
put to use on that date. N.M. Comm’r, 200 P.3d at 94 (citing
12
United States v. Jesse, 744 P.2d 491, 493-94 (Colo. 1987)).
“[T]he quantity of a federal reserved water right is not
determined by the amount of water put to beneficial use; rather,
it is determined by the amount of water necessary to carry out
the primary purpose of the reservation.” Id.
¶19 The United States Supreme Court first recognized the
doctrine of reserved water rights in Winters v. United States,
concluding that Congress had impliedly reserved rights to Milk
River waters for the Fort Belknap Indian Reservation because
those water rights were necessary to sustain the reservation
community. 207 U.S. 564, 576-77 (1908). Reserved water rights
have since been recognized for non-Indian reservations as well.
See, e.g., United States v. New Mexico, 438 U.S. 696, 718 (1978)
(national forest); Cappaert v. United States, 426 U.S. 128, 138
(1976) (national monument); Arizona v. California, 373 U.S. 546,
601 (1963) (national recreation areas and wildlife refuges),
abrogated on other grounds by California v. United States, 438
U.S. 645, 674 (1978).
¶20 The Supreme Court further defined the parameters of
the reserved water rights doctrine in Cappaert, stating that
“when the Federal Government withdraws its land from the public
domain and reserves it for a federal purpose,” it impliedly
reserves appurtenant water “to the extent needed to accomplish
the purpose of the reservation.” 426 U.S. at 138. In New
13
Mexico, the Supreme Court clarified that federal reserved water
rights do not extend to a reservation’s secondary purposes. 438
U.S. at 702.
¶21 To determine whether the federal government impliedly
reserved water rights, the superior court must
[1] examine the documents reserving the land from the
public domain and the underlying legislation
authorizing the reservation; [2] determine the precise
federal purposes to be served by such legislation;
[3] determine whether water is essential for the
primary purposes of the reservation; and finally
[4] determine the precise quantity of water — the
minimal need as set forth in Cappaert and New Mexico —
required for such purposes.
In re the Gen. Adjudication of All Rights to Use Water in the
Gila River Sys. & Source (Gila V), 201 Ariz. 307, 313 ¶ 14, 35
P.3d 68, 74 (2001) (quoting Montana ex rel. Greely v.
Confederated Salish & Kootenai Tribes, 712 P.2d 754, 767 (Mont.
1985)); see New Mexico, 438 U.S. at 702, 715-17; Cappaert, 426
U.S. at 141. This analysis requires review of the pertinent
documents to determine whether the land in question was
withdrawn from the public domain and reserved for a federal
purpose, and, if so, whether Congress intended to reserve
appurtenant, unappropriated water for that purpose. See
Cappaert, 426 U.S. at 138-39.
D. Withdrawal and reservation for a federal purpose
¶22 The State argues that the lands Congress granted in
trust to the states for institutional purposes fall into a
14
special category of federal reservation. Under the State’s
theory, Congress reserved the trust land for the federal purpose
of supporting specified public institutions and provided for
withdrawal of those lands at the time of survey or, for bulk-
grant and indemnity-in-lieu selections, when approved by the
Secretary.
¶23 In New Mexico Commissioner, the New Mexico Court of
Appeals addressed whether Congress had impliedly reserved
federal water rights for New Mexico’s trust lands. 200 P.3d at
95-98. That court concluded that the relevant language in our
states’ common Organic and Enabling Acts “did not sufficiently
withdraw or reserve lands to create implied federal reserved
water rights” and, therefore, did not satisfy “the threshold
requirements of demonstrating the existence” of such rights.
Id. at 97. Although the sections of the Enabling Act providing
for Arizona’s and New Mexico’s land grants are distinct, the
language and context of the separate sections are substantially
similar for purposes of analyzing the State’s reserved water
right claim here. Compare §§ 6-12, 36 Stat. at 561-65 (New
Mexico), with §§ 24-30, 36 Stat. at 572-76 (Arizona). We agree
with the reasoning and conclusion in New Mexico Commissioner.
¶24 The Enabling Act provides:
[I]n addition to sections sixteen and thirty-six,
heretofore reserved for the Territory of Arizona,
sections two and thirty-two in every township . . .
15
not otherwise appropriated at the date of the passage
of this Act are hereby granted to the State for the
support of common schools.
§ 24, 36 Stat. at 572 (emphases added) (carrying forward the
grants of the Organic Act, § 15, 9 Stat. at 452, which also
“reserved” sections sixteen and thirty-six). The term
“withdraw” does not appear in any form within the Enabling Act,
though it was used in the 1881 bulk grant to support
universities, 21 Stat. 326, see supra ¶ 3, and that grant was
incorporated in the Enabling Act, § 24, 36 Stat. at 572.
¶25 That Congress uses the word “withdraw” or “reserve” in
a statute granting land does not necessarily mean that the land
is withdrawn or reserved for purposes of public land law. S.
Utah Wilderness Alliance v. Bureau of Land Mgmt., 425 F.3d 735,
784-85 (10th Cir. 2005); N.M. Comm’r, 200 P.3d at 96; 2 Charles
F. Wheatley, Jr., Study of Withdrawals and Reservations of
Public Domain Lands App. A-20 (Pub. Land Law Review Comm’n 1969)4
[hereinafter Wheatley Report] (“Mere use of the terms
‘withdrawal’ and ‘reservation’ in a statute is not always
indicative that the subject lands are to be segregated from the
public domain in the usual sense of a ‘reservation.’ The intent
4
The Public Land Law Review Commission was established in
1964 to review the nation’s public land laws, rules, and
regulations, and to make public land policy recommendations.
Act of Sept. 19, 1964, Pub. L. No. 88-606, 78 Stat. 982. The
Commission ceased operation on December 31, 1970. Act of Dec.
18, 1967, Pub. L. No. 90-213, 81 Stat. 660.
16
of Congress may be quite different.”).
¶26 Withdrawal is the “removal or segregation of the land
from the operation of the general land laws as the initial step
in the dedication of the lands to the predetermined purpose.”
Wheatley Report at App. A-1 to -2. Statutes that give a state
the right to obtain land by selection, including indemnity-in-
lieu selection, “should be distinguished from a withdrawal or
reservation” because segregation by selection is designed to
“protect[] the rights of claimants . . . while the withdrawal
statutes are designed to retain the lands and preclude
disposal.” Wheatley Report at App. A-21 to -22. This
distinction corresponds with the Supreme Court’s suggestion that
withdrawn land may not be conveyed out of federal ownership.
Arizona, 373 U.S. at 598 (“We have no doubt about the power of
the United States under [the Constitution] to reserve water
rights for its reservations and its property.” (emphases
added)). It also corresponds with the Ninth Circuit’s
suggestion that withdrawal restrains alienation of the land.
Winters v. United States, 143 F. 740, 748 (9th Cir. 1906)
(“[W]hen the lands of the government have been legally
appropriated or reserved for any purpose, they become severed
from the public lands, and . . . no subsequent law or sale
should be construed to embrace or operate upon them.” (emphasis
added)), aff’d, 207 U.S. 564 (1908); see also S. Utah Wilderness
17
Alliance, 425 F.3d at 784 (“‘[A] reservation is a tract of land
. . . which is by public authority withdrawn from sale or
settlement.’”) (quoting Black’s Law Dictionary 1031 (1st ed.
1891)); 63C Am. Jur. 2d Public Lands § 31 (updated August 2012)
(“Public land is withdrawn when the government withholds an area
of federal land from . . . sale.”).
¶27 Before the survey of Arizona’s lands, no federal
legislation withdrew State Trust Lands from the public domain
because those lands had not yet been identified or selected, and
they were still available for disposition under homestead,
mineral, and other public land laws. See N.M. Comm’r, 200 P.3d
at 96; Land Comm’n Report at 67. The State Trust Lands also
were not withdrawn after the Secretary approved the surveys or
bulk-grant selections because, at that point, the lands were
owned by the state or were subject to a claim by the Territory
that would vest upon statehood. Andrus, 446 U.S. at 523
(recognizing that title to sections vested in states upon
survey’s approval); Gonzales v. French, 164 U.S. 338, 344 (1896)
(recognizing that, before statehood, territories could attach a
claim). Additionally, the Enabling Act authorized the state to
sell the Trust Land, in whole or in part, “to the highest and
best bidder at a public auction.” § 28, 36 Stat. at 574.
¶28 Thus, after approval of a survey and selections, State
Trust Lands were neither owned by the federal government nor
18
withheld from disposition. See Kelly v. Allen, 49 F.2d 876, 878
(9th Cir. 1931) (“[Arizona] is not holding [granted] land as an
instrumentality of the United States, but in its own right . . .
for the schools of the state.”). No withdrawal occurred with
respect to State Trust Lands.
¶29 Nor were those lands reserved for a federal purpose.
A reservation dedicates land to a specific public use. S. Utah
Wilderness Alliance, 425 F.3d at 785; Black’s Law Dictionary
1031 (1st ed. 1891). That use — the reservation’s purpose —
must be federal for the federal reserved water rights doctrine
to apply. Cappaert, 426 U.S. at 138.
¶30 The State argues that the Trust Lands were granted to
fund congressionally identified institutions, and they therefore
were reserved for a federal purpose, shown by the fact that
Congress established a trust with federal enforcement power.
See Lassen, 385 U.S. at 461-63 (providing that the purpose of
land grants was to produce funds to support public institutions
and noting that the federal government may enforce the grants’
terms); Kadish, 155 Ariz. at 487, 747 P.2d at 1186 (providing
that the state is trustee of federally granted common school
trust land); Enabling Act, § 28, 36 Stat. at 5775 (authorizing
the federal government to enforce trust requirements). We are
not persuaded.
¶31 Support of the common schools and other specified
19
institutions undoubtedly serves the public interest. It is not,
however, a federal purpose. Cooper v. Roberts, 59 U.S. (18
How.) 173, 181-82 (1855) (“The trusts created by [common school
grants] relate to a subject certainly of universal interest, but
of municipal concern.”); N.M. Comm’r, 200 P.3d at 97 (“Although
we do not deny that the support of common schools is a matter of
national interest, we cannot conclude that it is also a federal
purpose in the context of the implied federal water rights
doctrine.”); cf. United States v. Lopez, 514 U.S. 549, 564
(1995) (recognizing states’ power to regulate education);
Preiser v. Rodriguez, 411 U.S. 475, 491-92 (1973) (recognizing
states’ power to regulate state prisons); Holden v. Hardy, 169
U.S. 366, 395 (1898) (recognizing states’ power to regulate
insane asylums, hospitals, and schools for the blind).
¶32 Although the Enabling Act imposes federally
enforceable trust obligations on the state, this retained
oversight does not authorize the federal government to make
policy decisions on how the beneficiary institutions are
administered. Indeed, “the schools, colleges, and universities
provided for in this Act shall forever remain under the
exclusive control of [Arizona].” Enabling Act, § 26, 36 Stat.
at 573-74.
¶33 Nor does the retained oversight indicate the federal
government’s continued ownership of the trust lands or its
20
authority to make policy decisions on how the lands are used.
See N.M. Comm’r, 200 P.3d at 98 (rejecting unsupported
proposition “that by retaining oversight or enforcement power
over a state’s disposition of its trust lands, the federal
government also retains the title to the land” as needed to
reserve federal water rights); Campana v. Ariz. State Land
Dep’t, 176 Ariz. 288, 291, 860 P.2d 1341, 1344 (1993)
(recognizing that the state has “great discretion concerning the
disposition of trust lands and has authority to devise detailed
plans for the sale, lease, and use of state land”). The
Enabling Act provides only a limited federal power to intercede
in the event State Trust Lands are abused. See S. Rep. No.
61-454 at 19 (1910) (“There is nothing . . . especially radical
in [the Enabling Act’s enforcement provision], since at the most
it merely serves to remove any doubt concerning the right and
power of the Executive to take action for the enforcement . . .
whenever a serious violation occurs.”).
¶34 Under a narrow exception to the state’s autonomy
regarding use of State Trust Land, when a section-in-place grant
is located in a national forest reserve, the “granted sections
shall be administered as a part of [the] forest,” and the
federal treasury will appropriate a proportionate share of the
gross proceeds of the national forests within Arizona. Enabling
Act, § 24, 36 Stat. at 573; id. § 28, 36 Stat. at 574. That
21
exception highlights that when the purpose of non-Indian
reserved land is federal, the United States government retains
control over the reservation’s management. Cf. Kelly, 49 F.2d
at 878. Again, that is not the case with respect to State Trust
Lands.
¶35 Finally, we note that Congress knew how to reserve
land for a federal purpose and effectively did so in the
Enabling Act when it excluded from selection by the state any
lands valuable for providing water power:
There is hereby reserved to the United States and
excepted from the operation of any and all grants made
or confirmed by this Act to said proposed State all
land actually or prospectively valuable for the
development of water powers . . . and no lands so
reserved and excepted shall be subject to any
disposition whatsoever.
§ 28, 36 Stat. at 575 (emphases added); see United States v.
Ervien, 246 F. 277, 278 (8th Cir. 1917), aff’d, 251 U.S. 41
(1919). That provision preserved the land for use by the
federal government and precluded disposition, unlike the
relevant provisions here, which conveyed land to the state and
allowed future sales and leases. See Enabling Act, §§ 24-28, 36
Stat. at 572-74; supra ¶¶ 27-28. The water power provision also
concerned unique land, while the relevant provisions here
concerned random and uncertain lands. See id. § 29, 36 Stat. at
575 (providing that bulk-grant and in-lieu selections must be
from “unreserved, unappropriated, and nonmineral public lands”);
22
Andrus, 446 U.S. at 523 (discussing section-in-place grants as
“random cross section[s] of the public land”). Thus, if
Congress had wanted to withdraw and reserve for a federal
purpose the lands it granted to the state, it could have done
so. See N.M. Comm’r, 200 P.3d at 97.
¶36 For the foregoing reasons, we conclude that the State
Trust Lands were not withdrawn and reserved for a federal
purpose. Thus, these lands cannot include federal reserved
water rights.
E. Congressional intent
¶37 Even had the State Trust Lands been withdrawn and
reserved, no evidence suggests that Congress intended to reserve
water rights on those lands. The State contends that the
federal government’s relationship to the states is akin to its
relationship to the Indian tribes and posits that this
relationship compels a finding that Congress intended to reserve
water for State Trust Land development. We disagree. Unlike
reservations for the Indian tribes, land grants to the states
are not the product of negotiated agreements or treaties. See
Winters, 207 U.S. at 575-76. Nor does the State cite authority
for resolving any ambiguities in state land grants “from the
standpoint of” the states. See id. at 576; cf. United States v.
Winans, 198 U.S. 371, 381 (1905) (indicating that a “treaty was
not a grant of rights to the Indians, but a grant of right from
23
them”).
¶38 The State also contends that Congress intended to
reserve water rights because it knew of the region’s aridity and
the need for water to make productive use of the land. To
support this contention, the State quotes Senator Daniel
Webster’s observation that throughout the region, “there is one
fatal want of water.” Cong. Globe, 31st Cong., 1st Sess. 860
(1850). But Senator Webster was speaking about Texas boundaries
as he advocated for establishing a territorial border to prevent
Texas from claiming land that could help the New Mexico
Territory secure the population needed to achieve statehood.
Id. Notably, the goal of increasing the Territory’s population
would also have been supported by ensuring that the region’s
scarce water supply was obtainable by settlers rather than
reserved.
¶39 To enhance the value of its land grant to Arizona, the
federal government increased the number of school section-
in−place grants from two to four sections per township. See
Enabling Act, § 24, 36 Stat. at 572; N.M. Comm’r, 200 P.3d at
98-99; Lassen, 385 U.S. at 463 n.7; cf. H.R. Rep. No. 52-737, at
10 (1892) (providing, in an unenacted bill preceding the
Enabling Act, that granting Arizona four sections per township
would not “more than equal in value the land aid Congress has
given the other States” that received fewer sections). Thus, we
24
conclude that Congress intended to compensate for the relatively
low value of land granted to Arizona by augmenting the amount of
land granted, not by reserving federal water rights for those
lands. See N.M. Comm’r, 200 P.3d at 98-99.
IV. CONCLUSION
¶40 For the reasons stated above, we find no withdrawal,
no reservation for a federal purpose, and no congressional
intent to reserve water rights for the State Trust Lands.5 We
therefore affirm the judgment of the superior court.
_____________________________________
A. John Pelander, Justice
CONCURRING:
_____________________________________
Rebecca White Berch, Chief Justice
_____________________________________
Robert M. Brutinel, Justice
5
Our conclusion that federal reserved water rights do not
exist for State Trust Lands is independent of, and thus not
based on, the 1877 Desert Land Act to which the special master,
superior court, and several parties refer. The superior court’s
findings and conclusions regarding that Act, however, are
consistent with this opinion. See Ickes v. Fox, 300 U.S. 82, 95
(1937) (“[B]y the Desert Land Act of 1877 (c. 107, 19 Stat.
377), if not before, Congress had severed the land and waters
constituting the public domain and established the rule that for
the future the lands should be patented separately. Acquisition
of the government title to a parcel of land was not to carry
with it a water right.”).
25
_____________________________________
Lawrence F. Winthrop, Judge*
*
Pursuant to Article 6, Section 3 of the Arizona
Constitution, the Honorable Lawrence F. Winthrop, Chief Judge of
the Court of Appeals, Division One, was designated to sit in
this matter.
26
Re Water Rights to gila/little Colorado
Combined Opinion