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Departing from a 38-year-old U.S. Supreme Court standard for allocating river water in the American southwest, the Arizona Supreme Court on Nov. 27 set down new guidelines for determining the water needs of federal Indian reservations along that state’s Gila River system. In re Rights to Use Water in the Gila River System, nos. WC-90-0001-IR through WC-90-0007-IR and WC-79-0001 through WC-79-0004. The ruling, which is the fifth in a series made by the court since the case was tried in 1988, pushes aside the old method of allocating river water by determining a reservation’s Practically Irrigable Acreage (PIA). PIA was created by a U.S. Supreme Court special master in the 1963 case Arizona v. California, a fight over Colorado River water. Under that method, a reservation’s allocation was to be determined by “the amount necessary to irrigate all of the practicably irrigable acreage on that reservation,” the state supreme court said. Now, rejecting U.S. and tribal claims that federal case law pre-emptively established PIA as the controlling standard, Arizona’s high court said, “On its face PIA appears to be an objective method of determining water rights. But while there may be some ‘value of the certainty inherent in the practicably irrigable acreage standard,’ its flaws become apparent on closer examination.” One of those flaws, the court said, was that PIA could treat different tribes inequitably solely because of their geographical location. A tribe living on an alluvial plain and naturally having more irrigable land would receive more water than a tribe occupying mountainous land, even if the mountain tribe had a greater need for water. The court said that the PIA forced tribes to pretend to be farmers although “large agricultural projects are risky, marginal enterprises.” Instead of relying exclusively on the PIA, the state’s high court said, the trial court should consider several factors when computing a tribe’s water needs, including its history and culture, geography, topography, population growth and ground water availability. The public Salt River Project Agricultural Improvement and Power District filed this suit in 1974 to establish state river water rights. More than 40 entities, including tribal, municipal, state and federal governments, are party to it. Hailing the new method, the project’s litigation manager, attorney Frederick Beeson said, “I think everybody won.” He said, “PIA should not apply to all reservations,” adding that water allocation should be made on a case-by-case basis. Asked whether this meant that some tribes may now get less water under the new plan than they had under the old, he replied, “You don’t know what they would have gotten [because the PIA method was never actually used] and you don’t know what they’re going to get.” Chandler, Ariz., attorney Rodney B. Lewis represented the Gila River Indian Community in the action. He maintained that “PIA has not been abandoned.” He added that while PIA will no longer be the exclusive standard, “it will still be the primary standard” by which water needs are determined. “Surely there’s a lot of litigation to follow,” Lewis said.

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