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Arizona Department of Water Resources v. McClennen

Supreme Court of Arizona

November 12, 2015

ARIZONA DEPARTMENT OF WATER RESOURCES, AN AGENCY OF THE STATE OF ARIZONA; FREEPORT MINERALS CORPORATION, A DELAWARE CORPORATION, Petitioners,
v.
HON. CRANE MCCLENNEN, JUDGE OF THE SUPERIOR COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA, Respondent, MOHAVE COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF ARIZONA, Real Party in Interest

Special Action from the Superior Court in Maricopa County. The Honorable Crane McClennen, Judge. No. LC2014-000624.

Kenneth C. Slowinski, Janet L. Miller (argued), Jennifer Heim, Arizona Department of Water Resources, Phoenix, Attorneys for Arizona Department of Water Resources.

L. William Staudenmaier (argued), Snell & Wilmer, Phoenix; and Timothy Berg, Sean T. Hood, Rhett A. Billingsley, Fennemore Craig, P.C., Phoenix, Attorneys for Freeport Minerals Corporation.

John F. Munger, Adriane J. Hofmeyr (argued), Robert J. Metli, Lawrence V. Robertson, Jr., Munger Chadwick, P.L.C., Tucson, Attorneys for Mohave County.

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor General, Theresa M. Craig, Assistant Attorney General, Phoenix, Attorneys for Amicus Curiae Arizona State Land Department.

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor General, James F. Odenkirk, Assistant Attorney General, Phoenix, Attorneys for Amicus Curiae Arizona State Game and Fish Department.

David K. Wilhelmsen, Lance B. Payette, Favour & Wilhelmsen, PLLC, Prescott, Attorneys for Amicus Curiae Hualapai Tribe.

Jay Johnson, David Johnson, Central Arizona Project, Phoenix, Attorneys for Amicus Curiae Central Arizona Water Conservation District.

John B. Weldon, Jr., Lisa M. McKnight, Salmon Lewis & Weldon PLC, Phoenix, Attorneys for Amicus Curiae Salt River Project Agricultural Improvement and Power District.

Jeffrey W. Crockett, Crockett Law Group PLLC, Phoenix, Attorneys for Amici Curiae La Paz County and the Arizona Association of Counties.

CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE CHIEF JUSTICE PELANDER, and JUSTICES BRUTINEL, TIMMER, and BERCH (RETIRED) joined.

OPINION

Page 1024

BALES, CHIEF JUSTICE

[¶1] Under Arizona law, a right to use surface water may be acquired by appropriation. This right may be severed from the land to which it is appurtenant and, subject to the approval of the Director of the Arizona Department of Water Resources (" ADWR" ) and other conditions listed in A.R.S. § 45-172, may be transferred without losing its priority. " Interested persons" may file objections with ADWR to a proposed severance and transfer, and they may seek judicial review if ADWR grants approval over their objections.

[¶2] We hold that § 45-172 identifies the only grounds on which ADWR can deny a properly filed application to sever and transfer a water right. We further hold that the " interested persons" entitled to object to a proposed severance and transfer are limited to those with interests protected by § 45-172. In this case, ADWR properly denied objections filed by Mohave County because the County did not allege any violation of conditions specified in the statute and did not qualify as an " interested person."

I.

[¶3] In 2010, Freeport Minerals Corporation (" Freeport" ) filed applications with ADWR to transfer water rights appurtenant to land within Planet Ranch in Mohave County along the Bill Williams River corridor. The applications sought to sever water rights from Planet Ranch and transfer them to a wellfield near Wikieup, which in turn would be used at the Bagdad Mining Complex in Yavapai County for mining and municipal uses, and to other areas within Planet Ranch for use in the Lower Colorado River Multi-Species Conservation Program. No water would be physically moved from Planet Ranch to the Bagdad Mining Complex. The transfers instead concern the " right" to use water for certain purposes " without losing

Page 1025

priority theretofore established." A.R.S. § ...


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