In a rebuke to the Obama Department of Justice, an Arizona judge ordered some water rights owners to proceed in negotiations over water rights, without the federal government intervening. Six hundred and fifty water rights owners along the Verde River in north central Arizona have been drawing water from the Verde River Ditch since the early 1900s.
A state authorized water authority (Salt River Project) sought to enter a Memorandum of Understanding (MOU) with the Verde Ditch Company (VDC) that would re-categorize users (in laymen’s terms) as farmers or casual users. But two attorneys and two staffers from the Justice Department, who attended last Friday’s hearing, filed more than 200 pages of evidence and objections, arguing that state and federal case law declares them water rights holders and that the judge should deny SRP’s plan to categorize water users and possibly take water rights, depending on the wording of the MOU.
Presiding Judge David Mackey, of Yavapai County Superior Court, ruled Friday afternoon that SRP and the VDC shall move forward with crafting a new MOU, and that the United States government was wrong in challenging his jurisdiction. U.S. Attorney Patrick Barry claimed the water rights issues were being addressed in Maricopa County Superior Court already, and he cited cases from 1909, 1974 and others that included the federal government as litigants. Some of Barry’s 200 pages of evidence included a hand written water claim from 1891 that was recorded by the county recorder the same year.
All parties also cited 130-year-old water rights cases that are still unsettled. One lawsuit was reported by this examiner in two parts. Even the Yavapai-Apache Nation and the Arizona Department of Water Resources filed briefs in the case, and intervened during the hearing. They claim they did not appreciate the wording of SRP’s and VDC’s version of the first draft of the MOU, and that they have water rights or a stake in water rights along the Verde River.
Peter Mollick who has held water rights along the Verde for 11 years, brought his complaint against the way the MOU was unfolding. He and one other water user were in court “fighting for the little guys,” feeling that the VDC and its lawyer were not adequately representing them. The value of water rights on Mollick’s property is approximately $30,000 per year, and the county can tax some of that. When asked if the Yavapai County Board of Supervisors had ever taken a stance on the lawsuit, Mollick said, “No.”
Mollick and others don’t agree with the way the MOU describes three categories of users, and are concerned that SRP will shift people from one category to another to their detriment. They claim they have better ways to justify being in different water use categories.
“SRP has not talked to neighbors one-on-one. Some are old, ill and on fixed incomes and can’t afford a legal battle,” Mollick told this reporter. Mollick does not think the attorney for the VDC, nor the Verde Ditch Commissioners, are working in his best interests. The VDC admitted in Court that they do not represent the water rights holders, and that they simply make sure the water is flowing down the ditch to its users.
But Judge Mackey stated throughout the hearing, and as he read his minute order he restated, that any shareholder will be afforded their right to due process as the process of crafting the MOU moves forward. In other words, if the Court recognized Mollick’s court pleadings, then any Verde Ditch water right’s holder can join in the proceedings.
More as the order and other exhibits that help explain the complex litigation become available to this reporter. Documents will be posted on the Superior Court’s website as: Hance v. Arnold, in the matter of the Verde Ditch Company, case no. P1300CV4772.