In re the Gila River General Adjudication (2/19/10)

The Arizona Supreme Court took this case as a “special proceeding” for interlocutory review of a ruling by an “adjudication court” on a “motion for summary disposition.”

Sound like the twilight zone? It won’t to old ears but if yours aren’t then welcome to the world of the water cases. This species of permanent litigation has enriched generations of Arizona lawyers. The present opinion, for example, cites cases called Gila River I, Gila River VI, Gila River VII, and maybe some other Gila Rivers we missed.  It has spawned its own rules and procedures, e.g., the 1991 Special Procedural Order that controls this particular sub-species of stream litigation. And it has its own language, which we needn’t go into since if you care about AFYs and rebound calls and the Globe Equity Decree of 1935 and such then you already know what they are. One occasionally suspects, though, that like Jarndyce v. Jarndyce the case isn’t entirely understood by anyone alive – a situation always beneficial to the profession.

Few of the stream opinions neglect to describe their litigation’s tortuous history, often with rueful but passing acknowledgment that it was “complex” twenty years ago. This one also informs us that “much of Arizona is arid desert land” – citing the United State Supreme Court for the proposition, in case you weren’t clear on it.

The case is so complex that, as usual with such cases, procedure trumps substance. This opinion, in the course of 32 pages and 19 often-lengthy footnotes, upholds a settlement agreement involving one party (arrived at in 2005, to show you how quickly these things move) by saying not much more than that the lower court’s order approving it was procedurally correct and that any factual loose ends can be dealt with in the future. It addresses inconsistencies between the special procedural orders in the Gila River litigation and the Little Colorado litigation by saying, in not quite as many words, “we don’t want to talk about that.”

That is the way it manages these cases. Unless kept firmly at bay they would overwhelm. And so, since the only fair way to resolve the facts would be to use dueling pistols, we have developed procedural systems for handling – without ever ending – them, systems that must be preserved at all costs. The judges hope that push doesn’t come to shove until after they’ve retired, the lawyers until after their grandchildren have.