General Stream Adjudications Today: An Introduction

Americans hear many news stories about large, controversial class action lawsuits for asbestos injuries, defective products, and environmental damages. These cases join many thousands of parties, cost tremendous amounts of money, and take years to complete. Few Americans, however, have ever heard about a set of lawsuits that affects most people living in western states and concerns something very important to these people: their water. In some cases, these lawsuits directly or indirectly impact most if not all of the residents of a state. They take decades to complete; indeed, some cases filed in the 1970s are still pending. The attorneys and consulting fees are daunting. These cases are likely to determine the future of Phoenix, as well as the future of Yellowstone National Park’s geysers. These relatively obscure lawsuits are general stream adjudications, and they implicate the rights to use much of the surface water and certain groundwater in twelve western states. General stream adjudications are comprehensive lawsuits, usually filed in state court, to determine the ownership and characteristics of water rights including priority date, permitted use, flow, and quantity. Because of historically tattered water right records, adjudications are used to determine existing water rights. In the West, much of the land is owned by federal land management agencies, such as the National Park Service and Bureau of Land Management, or in trust for the many federallyrecognized Indian tribes. Many of these agencies and tribes have large, senior water rights (recognized under the federal reserved rights doctrine), and these water rights need to be determined to complete a meaningful adjudication of a river or groundwater basin. However, Congress has authorized federal participation in these cases (a wavier of sovereign immunity) only if federal and Indian water rights are determined in comprehensive adjudications joining all of the water users of a river or source. Consequently, general stream adjudications are large and complex. Montana’s adjudication is the largest, addressing all of the state’s water with over 210,000 claims filed. Arizona’s two adjudications total 88,000 claims, but a handful of claims might represent the major water providers for the Phoenix metropolitan area. Unlike class action lawsuits where a plaintiff class may be pitted against a defendant, the water users in general stream adjudications often have claims potentially adverse to all other water users. General stream adjudications are multidisciplinary undertakings with water law, Indian law, hydrology, economics, engineering, soils and agricultural sciences all contributing. The cases, however, can be management nightmares for the federal or state judge who gets assigned. Because of case duration, one generation of judges, attorneys, and experts may be succeeded by another generation before the case is completed. The large adjudications that are still pending in many western states commenced in the 1970s and 1980s. They were filed in response to rapid western development and competing state, federal, and tribal interests. Most people thought that neat, detailed final decrees would follow within a decade. The adjudications, still not complete, are yielding much different results. The most important development has been the negotiation of major water rights Universities CoUnCil on Water resoUrCes JoUrnal of Contemporary Water researCh & edUCation issUe 133, pages 1-4, may 2006