|Written by Mark Lineberger|
|Friday, 05 August 2011 15:00|
The Yavapai-Apache Nation didn’t have standing to file an objection over the city of Prescott’s plan to pump water from the Big Chino aquifer during the state’s administrative review of the proposal, the Arizona Court of Appeals has ruled.
This particular issue started in fall 2007 when Prescott applied to the Arizona Department of Water Resources to amend its assured water supply to include water drawn from the Big Chino Subbasin of the Verde River groundwater basin. The plan has created contention among groups that believe pumping water from this particular basin could threaten the water supply in the Verde River, a supply several communities downstream depend on, including the Yavapai-Apache Nation.
After ADWR approved the Prescott plan, the Nation was one of several groups that filed an objection only to be told by the water resources department it had no legal basis to have its objections heard. The Nation and others joined to file a suit against ADWR, the Arizona Office of Administrative Hearings and the state of Arizona along with Prescott and Prescott Valley. The trial court found that while the Nation had other avenues to object to the plan, the administrative review phase of the Prescott proposal was not one of them. The Nation appealed as well as asking for a summary judgment.
In a 26-page ruling published last week, the appellate court found that in order to appeal during an administrative review, the objectors must live in the “active management area,” or AMA, of where the water in question is to be used, a standard that doesn’t apply to the Nation. The three-judge panel also agreed with the lower court that there were other avenues the Nation could take to object, and therefore the decision didn’t violate the Nation’s constitutional right to due process.
The court ruled the state’s water code provides separately for determinations on water rights adjudication, which deals with the allocation of water rights, and for issues dealing with water usage management in a particular AMA.
The Nation argued the language of the law could allow for its objections to be heard without requiring the ADWR to block its objections, and that doing otherwise limits the pool of potential objectors and runs counter to the “intent [and] purpose of the law.”
The defendants’ counterargument was that if anyone could object at any time, then the law requiring residency in an AMA in order to object has no purpose. It also pointed out the Nation is included among “water users upon a river system” and could file an objection during a future phase of the plan when water supply determinations are being made in Prescott, a phase where the rules about who may object are far less narrow.
The Nation argued this involves a special case, since the water in question is being taken from outside a particular AMA for use within. ADWR disagreed, and the court decided to give that agency “great weight” in weighing the findings, based on prior case law where the Legislature considered the opinions of an agency like ADWR and its director to be those of an expert.
Since the administrative review dealt with how Prescott would use the water inside its AMA and not water rights themselves, the Nation has no standing.
The court also denied requests for the Nation, Prescott and Prescott Valley to recoup legal fees spent in this matter, finding none of the parties cited any legal basis for their request.
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