Arizona high court rules that Congress did not reserve water rights for state trust lands

FELICIA FONSECA
Associated Press

FLAGSTAFF, Ariz. — Congress did not intend to reserve water rights for state trust lands, the Arizona Supreme Court ruled Wednesday in settling a question important to resolving claims to the Little Colorado and Gila rivers.

State officials had argued that when Congress granted the land to Arizona for universities, government buildings, prisons and other institutions, it established a trust similar to creating reservations for American Indian tribes and, therefore, implied reserved water rights.

The high court said land grants are different in that they are not the product of negotiated agreements or treaties. It also rejected Arizona's argument that Congress meant to reserve water rights for state trust lands because lawmakers were aware that water was needed to make use of the arid land.

"Support of the common schools and other specific institutions undoubtedly serves the public interest," the court wrote in its ruling. "It is not, however, a federal purpose."

Arizona became a state in 1912, carved out of what once was New Mexico territory. Two-thirds of the more than 9 million acres of state trust lands lie in the river basins.

The state had filed motions for partial summary judgment in two cases — one in Maricopa County Superior Court to resolve Gila River claims and the other in Apache County Superior Court for the Little Colorado River. The state appealed a determination from the water judge overseeing both cases that federal reserved water rights don't apply to state trust lands.

Supreme Court Justice A. John Pelander, writing for the court, said Congress compensated Arizona for the relatively low value of the land granted by giving the state more land. Although a federal law that set requirements for Arizona and New Mexico territories to become states imposes enforceable trust obligations on Arizona, it doesn't allow the federal government to make policy decisions on how state institutions are run, the court said.

The New Mexico Supreme Court ruled similarly in a case involving rights to the San Juan River.

The Arizona State Land Department said a determination in the state's favor would have upped the value of the lands held in trust for public education and furthered the department's ability to generate revenue. Department spokeswoman Vanessa Hickman said it would continue to pursue its water claims in the court.

Nearly 10,000 claims have been staked in the cases that has been ongoing for decades.
"There are more than 9 million acres of state trust lands. If suddenly these lands had water rights, they would overwhelm all other uses of water," said Glennon, author of the book, "Unquenchable: America's Water Crisis and What To Do About It."

Congress never explicitly reserved water rights for federal reservations, but they've been implied in the creation of federal reservations for American Indians, military bases, and national forests, parks and monuments. The U.S. Supreme Court repeatedly has recognized those rights.

Congress defers to state water law except in limited circumstances, such as water rights for federal reservations, said water rights attorney Stanley Pollack, who works for the Navajo Nation.

In the Gila River case, for example, the parties are wrangling over water rights for the Army's Fort Huachuca base in southern Arizona, which has federally reserved water rights.

The Navajo and Hopi tribes recently took up a settlement agreement that would have resolved claims to the Little Colorado River basin, but they've returned to litigation after Navajo lawmakers rejected it. Aside from Zuni Pueblo, no other Arizona tribe has acquired rights to the Little Colorado River.

Pollack said the Arizona justices' ruling "removes an important cloud that hovers over everyone's water rights in both cases."

Dave Roberts, water resource manager for the Salt River Project, said the state Supreme Court made the right decision.

"The opposite decisions could have thrown a huge monkey wrench into the state's water allocation process and raised still more uncertainty for water users," he said.

Dust ordinance stirs off-road resentment

by Peter Corbett
The Arizona Republic

It was intended to clear the air, but it appears Scottsdale's dust ordinance has stirred up resentment among off-road vehicle enthusiasts.

They were kicked off popular trails in the Granite Mountain Multiuse Area this summer while other users - jeep tours, equestrians and mountain bikers - continue to kick up dust on the state land in north Scottsdale.

"It's just another ridiculous bureaucratic mess that the public gets caught in," said Jeff Gursh of the Arizona Off-Highway Vehicle Coalition.

The coalition had worked with city and state officials to manage the 16,000-acre Granite Mountain area northeast of Pima and Dynamite roads and to keep motorized riders and others on signed trails.

Now that responsible riders are gone, Gursh said there is no one to keep a close eye on the state trust land that the city one day hopes to add to its McDowell Sonoran Preserve.

That has led to a series of problems, he said, including:

• Rogue riders cutting fences and riding wherever they choose.

• Contractors dumping construction waste.

• Illegal shooting and vandalism of gates, signs and information kiosks.

Meanwhile, mountain bikers and hikers continue to park on the unpaved access points into the Granite Mountain trails, which, according to Gursh, should not be allowed under the dust-control ordinance the city adopted in March.

And there is confusion about allowed uses since most access points do not have signs that say off-road vehicles are prohibited.

Scottsdale police Sgt. Mark Clark said officers have been issuing warnings to off-road riders to make them aware that the Granite Mountain area is closed to motorized recreation.

Scottsdale spokesman Pat Dodds said the city is doing its best on enforcement, with limited resources, on a huge expanse of land.

Scottsdale prohibited off-road vehicles in the Granite Mountain area because it wants to acquire the state trust land for its preserve.

"We want to keep the folks out who would do damage to it," Dodds said.

Scottsdale is also writing a policy that would allow Jeep tours in the area but phase them out, he said.

Scottsdale and other municipalities adopted dust-control measures this year aimed at cutting air pollution. State law requires the stringent measures to meet federal regulations.

Court: No reserved water rights for state trust land

The Associated Press
Santa Fe New Mexican

There are no federally reserved water rights for the millions of acres of state trust land in New Mexico, the state Court of Appeals ruled Wednesday.

In an important case involving water law in the West, the court rejected claims made by the State Land Office that a federal legal doctrine reserved water rights for lands granted to New Mexico by the federal government when it became a territory and then a state.

At issue is a legal doctrine that recognizes water rights for tribal lands as well as federal lands that make up national forests, military bases and national parks.

The court's decision came in a case involving the adjudication of water rights in the San Juan River Basin of northwestern Mexico. In the river system, there are nearly 300,000 acres of trust land.

The Land Office manages about 13 million of acres of land across New Mexico, generating money for public schools and other institutions from oil and natural gas production on the lands as well as grazing, mining and real estate development.

New Mexico's top water official, the state engineer, as well as the Navajo Nation, Jicarilla Apache Nation and Ute Mountain Ute Tribe had opposed the water rights claim for trust lands.

"The Court of Appeals got it exactly right," D.L. Sanders, chief counsel for the state engineer, said in an interview.

He said no state court has recognized federal reserved water rights for state trust lands in the West although the legal question has come up in other places, including Arizona and Montana.

"By everybody's calculation, this was a huge stretch in the legal theories," Sanders said.

Had water rights been reserved for New Mexico's trust lands, Sanders said, it would have been a "sweeping change in law" and disrupted the current system that allocates rights for using water. Federal reserved water rights typically are more senior than those held by private landowners or municipalities in New Mexico, giving them a greater priority in times of drought when not enough water is available to cover the demands of all users.

Last year, a state District Court in San Juan County rejected the claim made by the Land Office.

The Court of Appeals affirmed the decision.

The lands conveyed to New Mexico by acts of Congress from 1850 to 1910 "were never withdrawn from the public domain and reserved for a federal purpose. As such, it necessarily follows that any attendant federal reserved water rights that the commissioner now claims in connection with those lands were also not impliedly reserved," the court said in an opinion written by Judge James Weschler.

A spokeswoman from the Land Office did not immediately return a telephone message seeking comment on the case or whether the ruling would be appealed to the state Supreme Court.

Ruling keeps roads, land measures off Ariz. ballot

By PAUL DAVENPORT
Associated Press

PHOENIX - A state Supreme Court ruling Tuesday means Arizona voters won't be deciding proposed ballot measures on transportation funding and conservation of state trust land.

Election officials who reviewed qualifying petitions for each measure had determined that neither had valid voter signatures.

Supporters went to court to challenge those actions but a trial judge ruled last week that supporters missed a deadline to challenge petition checks by Secretary of State Jan Brewer's office that were part of those reviews. County officials also reviewed signatures on some petitions.

The Supreme Court's order Tuesday upholds the judge's ruling. Paul Eckstein, a lawyer representing supporters of both initiatives, said the high court's action means neither proposal will be on the ballot.

Proposition 203, titled "Transportation Infrastructure Moving Arizona's Economy," or TIME, by supporters, would have raised the state sales tax by a penny to pay for highway and other transportation improvements.

Proposition 103, which was titled "Conserving Arizona's Water and Land," would have set aside more than 500,000 acres of trust land as open space.

Gov. Janet Napolitano has called both measures important steps for the state to handle its continued growth, and spokeswoman Jeanine L'Ecuyer reacted to the ruling by called the proposals' failures to make the ballot "a tremendous blow" to the state.

"This is not good news," L'Ecuyer said.

The Supreme Court released its decision in a brief, one-page order signed by Chief Justice Ruth V. McGregor. As is typical in last-minute election cases, the Supreme Court's order said the justices will explain their reasoning later.

Initiative on state trust land lacks enough signatures to make ballot

By Howard Fischer
Arizona Daily Star

PHOENIX — An initiative to put about a half-million acres of state trust land off-limits to development, the largest share of it in Pima County, does not have enough valid signatures to make the ballot, Secretary of State Jan Brewer concluded Friday.

Brewer said backers turned in nearly 370,000 signatures. But she said petitions with more than 33,000 of those were rejected by her office. And, a random check by county recorders of the remaining signatures ultimately concluded that another 125,580 of those should be removed either because they did not belong to registered voters or for other reasons.

The result is that the measure came up about 19,000 signatures short of the 230,047 required to put the measure before voters in November, Brewer said.

Patrick Graham, executive director of The Nature Conservancy, which wrote the measure, said his organization will take the matter to court. Graham said he believes that there are sufficient valid signatures.

That argument was reiterated by Charles Blanchard, the attorney hired by the group.

Blanchard said county recorders disqualified a large number of the names for technical reasons, like having an incorrect or missing date next to the signature. But he said courts are permitted to declare those names valid if there is "substantial compliance" with legal requirements.

Arizona got about 10 million acres from the federal government when it became a state in 1912. The state constitution requires it be either leased or sold for the highest value, with most of the funds earmarked for public education.

About 9.3 million acres remain. Proposition 103 would amend the constitution to exempt specific parcels scattered throughout the state from that requirement.

The Arizona School Boards Association voted earlier this year to oppose Prop. 103. That group's key concern is whether taking what could be highly desired parcels off the market would hurt classroom funding. The Arizona Education Association, which represents teachers, has backed the measure, saying there will be no loss.

Acreage, by county, Prop. 103 would have preserved:

• Apache 17,540
• Cochis 82,715
• Coconino 36,423
• Graham 635
• Maricopa 62,661
• Navajo 3,142
• Pima 181,391
• Santa Cruz 30,242
• Yavapai 71,563

Source: The Nature Conservancy

Ranchers, environmentalists show support for initiative

By Jaime Richardson
Green Valley News






George Monzingo, left, who runs a cattle ranch between Tombstone and St. David, talks to Sonoita rancher Mac Donaldson. Donaldson organized a meeting at Empire Ranch Tuesday to discuss a proposed State Trust land initiative that will affect those leasing in Pima and Santa Cruz counties. At right are Dennis and Deb Moroney, who raise cattle in McNeil, Ariz. (Jaime Richardson Green Valley News)

Area ranchers met with environmentalists in Sonoita on Tuesday to discuss a proposed measure that would set aside 570,000 acres of State Trust land for conservation.

About 30 supporters of Proposition 103: the Our Lands, Our Schools Initiative, gathered on a cloudy day at the sprawling Empire Ranch in Sonoita, a rural community about 40 miles southeast of Green Valley.

The historic ranch sits at the heart of the 42,000-acre Las Cienegas National Conservation Area, on public lands acquired and administered since 1988 by the Bureau of Land Management. Ranching there continues under a grazing permit held by John Donaldson and his son Mac, of Sonoita.

“In 150 years, what will our great-grandchildren have here in Arizona?” said Mac Donaldson, who helped organize Tuesday's gathering. “Will they have more Phoenix, more Mesa? Or will they be able to have something like this?”

A similar initiative, Proposition 105, the State Trust Lands Act, failed to make the ballot in 2006.

The main purpose of Our Lands, Our Schools, would be to set aside 570,000 of the state's 9.3 million acres of State Trust land for conservation, explained Patrick Graham, state director of the Nature Conservancy and chair of the initiative committee. This would ensure that those acres could never be sold for development, he said.

Existing leases and rights-of-way would not be affected, and would continue to generate revenue for the trust.

The more than half-a-million acres were selected based on their ecological significance and proximity to state and federal parks and wildlife management areas. This would include 50,135 acres in the Santa Rita Experimental Range, 2,073 acres in the West Desert Preserve, 30,172 acres in the Sahuarita Mountains, 8,768 acres in the Santa Cruz Wildlife Corridor, and 3,072 acres adjacent to Patagonia Lake State Park.

About 85 percent of State Trust lands are leased for grazing, but there is an increasing pressure to sell that land to developers, said Graham.

“These lands are increasingly being converted into subdivisions,” he said. “This initiative is a unique opportunity for landowners, conservationists, the business community and educators to form a coalition and try to do something for Arizona that will benefit us for the next century.”

Some of the money from the sale of State Trust lands goes to public schools in Arizona.

The Arizona Education Association supports the initiative, but much of the education community is split, says Patrick Bray, deputy director of government affairs for the Phoenix-based Arizona Cattlemen's Association, who voted to take an official stance against the initiative. One reason for their decision is their belief that the initiative will hurt funding for public schools.

“We're in favor of the mission of the trust, which is the highest and best possible use of the land,” said Bray. He said that State Trust land is not public land, and should not be treated as such. “There’s no reason that 570,000 acres should be set aside and not paid for. If so, the trust should be compensated somehow.”

The Cattlemen's Association is run by a 25-member board made up of representatives from every county in Arizona. Bray said it took members around 60 days to come up with their decision, which they didn’t take lightly.

“When a trust owns those lands, and you have to answer to 12 beneficiaries (one of which is the Arizona public school system), you should pay for those lands,” said Bray.

But Graham says the schools will still get revenue from the conservation lands.

“Those people in the education community that have taken the time to understand that the trust is not harmed by this measure are very supportive of it,” he said.

A representative from the office of Gov. Janet Napolitano who attended the meeting said the governor is in support of the initiative. U.S. Rep. Gabrielle Giffords sent a spokesperson to collect information, though Democrat Giffords has yet to reveal her positions on any of the initiatives up for ballot.

Joining those representing the Nature Conservancy, Cienega Watershed Partnership and Sonoran Institute were ranchers from throughout Santa Cruz and Pima counties, from as far north as Aravaipa Canyon, about 50 miles northeast of Tucson. Many of the ranchers have lands that would be included in the 570,000 acres. Others came just to bring back information to share with their neighbors and fellow cattlemen.

“Many ranchers and environmentalists have the same goals, so why not work together, instead of against one another?” said Mac Donaldson.

“I have a long-term concern for the health of our state — that's why I’m supporting this. And I’m attempting to show that there are grazers here who support it, and have some sense of what the future can bring both for us and for Arizona.”

Off-road people may see impact of dust controls

The Arizona Land Department is considering closing a major portion of state trust land to motorized vehicles. In particular, it would target off-roaders

Editorial

Yuma Sun

Trying to keep the dust from being stirred up in the middle of the desert has always seemed a little futile to us, despite the fact that federal environmental officials insist that it is necessary.

The federal government has certain standards for air quality and one of them involves keeping levels of dust in the air below certain levels. If states or cities do not meet those standards, then they are "punished" by imposition of strict control rules and the eventual loss of federal funding.

Arizona and Yuma County are under the gun for not meeting these dust standards and a number of steps have been required over the years to minimize dust, including watering dirt roads and watering down construction sites.

Now a new wrinkle has been added by the Arizona Land Department for some parts of Maricopa County and Pinal County. The department is considering closing a major portion of state trust land to motorized vehicles. It in particular would target off-roaders.

Four-wheel vehicles, dirt bikes and ATVs would be banned from popular trail areas because the Land Department says they stir up too much dust, raising the potential the state would not meet dust attainment standards and would lose federal road money.

Some off road groups have a different suspicion, and that is that the Land Department just doesn't like off-roaders going into the rugged back country areas, and that it is using the dust attainment rule as an excuse.

There is no proof of that, but the end result would be the same whatever the reason - off-roaders couldn't enjoy their recreational activity. And there are a substantial number of them in Arizona and in our area.

The Associated Press reported that some believe as many as 500,000 people in our state participate in off-roading, with much of the growth in the past decade. There has been as much as a 350 percent increase.

Off-roading is also popular in our area, and keeping within dust containment levels here is an ongoing problem. Could this activity eventually be limited here also? Perhaps.

There needs to be recognition by the federal government that dust is a natural part of our desert environment. Yes, human activity can cause dust, but a big factor is natural causes like the wind. So far, controlling nature is beyond the reach of the government, so they focus on human activity, unfairly imposing impractical standards on dust control.

The federal government needs to back off and accept that dust is natural part of our environment here.

Off-roading may end on state land around Phoenix

The Associated Press
Arizona Daily Star






PHOENIX — Off-roading could become a thing of the past on state trust land that surrounds the Phoenix area.

Because of dust, poor air quality and the potential loss of billions of dollars in federal road-building funds, the state is considering restricting or closing a large portion of trust land to motorized vehicles.

If it's approved, the Land Department's actions could effectively ban or limit dirt bikes, quads, Jeeps and all-terrain vehicles from a wide array of popular trails in Maricopa County and parts of Pinal County.

The areas affected by a possible ban include trails near Lake Pleasant and the White Tank Mountains, as well as Granite Mountain in Scottsdale, the Hassayampa River near Wickenburg, and Desert Wells near Apache Junction.

Off-roaders think there are other motives for banning their motorized activities.

"Some of the agencies, you have to wonder if their motive is to eliminate OHVs (off-highway vehicles) and maybe not dust control," said Mike Fissel, whose group, Jeep Expeditions, often takes days-long sightseeing trips into the desert.

"People like myself, the only reason we get outdoors is that we do have the ability to hop in our Jeeps and enjoy what the state, nature and God has given us," Fissel said.

"Without it, we are basically stuck on the freeways."

Off-roading has enjoyed tremendous popularity in Arizona.

According to some estimates, there are as many as 400,000 to 500,000 ATVs in the state, and the number of those participating has grown as much as 347 percent in the past decade.

Trying to control dust while allowing off-roaders to have fun has proved to be a challenge.

"We recognize that if all our lands were closed, that might be a problem," Deputy Land Commissioner Jamie Hogue said. "We have not come up with a final resolution."

Groups battle over land proposition

Opponents:
Measure would detract from
sales benefiting state schools


by Lesley Wright
The Arizona Republic



Arizona state trust lands map.
[Click image for detail.]

A coalition of educators and conservationists submitted petitions Wednesday, calling for an initiative on the Nov. 4 ballot that would preserve more than 570,000 acres of the Arizona's most ecologically sensitive lands.

The "Our Land Our Schools" proposition would ask voters to change the Arizona Constitution, making it easier to protect Arizona's 9.2 million acres of state trust land.

Sale and lease of the trust land helps fund education and state agencies.

Phoenix, Scottsdale, Flagstaff and 57 other communities across Arizona would immediately expand their desert and mountain preserves, and the initiative would allow communities to buy thousands more acres without competing with developers.

"We need to get this done," said Pat Graham, state director of the Nature Conservancy. "It's too important to the state of Arizona."

The coalition gave the Secretary of State petitions with more than 350,000 signatures, well over the 230,047 certified signatures needed to make the ballot.

Defeated two years ago

A similar measure was put to voters in 2006, but narrowly lost.

Unlike two years ago, the Legislature did not put a competing referendum on the Nov. 4 ballot. And unlike two years ago, the state's largest homebuilding organization has pledged not to oppose it.

Still, the initiative continues to draw strong opposition. Critics say that the Arizona State Land Department should continue to sell or lease trust land - granted to Arizona at statehood in 1912 - only to the highest bidder.

Supporters argue that education funding would not suffer under the changes, since the price of developable land next to preserves skyrockets, and the state should profit as much or more.

Voter education urged

"This is not an issue understood by a lot of people," Graham said. "It requires more outreach."

Still, he and other advocates said that this measure has the best chance ever. It is less complex than the 2006 proposition, and has attracted supporters that range from Gov. Janet Napolitano to the Sierra Club.

More important is one group not opposing the proposition - the Home Builders Association of Central Arizona.

The homebuilders helped defeat prior efforts to preserve trust lands.

But the lobby agreed to remain neutral this time in exchange for some key changes to a major transportation initiative that also appears headed to the Nov. 4 ballot.

Opposition to changes

The Arizona School Boards Association, which represents school-district governing boards, voted this weekend to oppose the initiative, as it did the 2006 ballot question. Members are worried about losing education funds, said Tracey Benson, the association's spokesman.

"They didn't want to take any risks with this funding stream when funding is tight and getting tighter," Benson said.

The Arizona Cattlemen's Association, another foe of the 2006 initiative, also could campaign against this one.

But the Arizona Education Association, which represents the state's teachers, is a leading supporter of the initiative.

Besides increasing the value of land surrounding conservation areas, the proposal would give the Land Department more flexibility for planning and managing development and allow for greater income, said John Wright, the teacher group's president.

"Every aspect of this initiative benefits the classroom," Wright said.

House panel OKs Matheson land swap

Deal would help cut down 'checkerboard pattern'
of property


By Suzanne Struglinski
Deseret News


WASHINGTON — A House panel has approved a 40,000-acre land exchange between the Utah school trust land administration and the Bureau of Land Management.

Wednesday, the House Natural Resources Committee approved the Utah Recreational Land Exchange Act of 2007, introduced by Rep. Jim Matheson, D-Utah, that calls for the exchange near the Colorado River in Uintah and Grand counties to help reduce the "checkerboard pattern" of state trust lands and federal land.

"This bill is the result of consensus among a broad, diverse group of stakeholders — public and private, urban and rural, industry, conservation, sportsmen and education," Matheson said in a statement. "The result is a proposal that is fair to the taxpayer, beneficial to Utah schoolchildren, mindful of hunting and other public access opportunities and a better configuration for land managers to protect habitat, watershed and recreational values."

The bill still must pass the full House and Senate before going to the president for his signature. Sens. Bob Bennett and Orrin Hatch, both R-Utah, have the same bill in the Senate. The bill passed the House in the previous Congress, but the Senate did not vote on it.

Through the bill, BLM would receive state school trust lands in Grand and San Juan counties. The land includes portions of Westwater Canyon, the Kokopelli and Slickrock trails, multiple wilderness study areas and proposed wilderness areas and some of the largest natural rock arches in the country, according to Matheson's office. In exchange, the trust would get BLM land in Uintah County that has oil and natural gas potential, with proceeds from any eventual development directed to Utah schools.

The Utah Wilderness Coalition supported the bill's approval, calling it an example of how diverse stakeholders can work together.

"Many of the public lands to be acquired by the Bureau of Land Management (BLM) in this exchange qualify as wilderness and we believe this legislation advances protection for these proposed wilderness landscapes by bringing them into common public ownership," the coalition said in a statement. "At the same time, the state of Utah and its schoolchildren will benefit by receiving lands more appropriate for development and the ensuing revenues that development would provide."

The trust lands were set aside at statehood to support education. They were intended to offset the significant federal ownership of land in Utah. But the scattered nature of the lands has made productive use difficult and in recent years efforts have been made to trade tracts for areas with more earning potential. Proceeds from sales or use go into a permanent fund, with interest and earnings earmarked for education.