SUPREME COURT OF ARIZONA 

En Banc 

 

IN RE: THE GENERAL ADJUDICATION ) Arizona Supreme Court 

OF ALL RIGHTS TO USE WATER IN ) No. WC-02-0003-IR 

THE GILA RIVER SYSTEM AND SOURCE. ) 

 ) Maricopa County 

 ) Superior Court 

 ) Nos. W-1, W-2, W-3, W-4 

 ) (Consolidated) 

 ) 

 ) [Contested Case No. W1-206] 

 ) 

 ) O P I N I O N 

__________________________________) 

Interlocutory Appeal from the Superior Court of Maricopa County 

The Honorable Eddward P. Ballinger, Jr., Judge 

AFFIRMED AND REMANDED 

SPARKS, TEHAN & RYLEY, P.C. Scottsdale 

 By Joe P. Sparks 

 John H. Ryley 

 Susan B. Montgomery 

 Robyn L. Kline 

Attorneys for San Carlos Apache Tribe 

RYLEY CARLOCK & APPLEWHITE, P.A. Phoenix 

 By John C. Lemaster 

 Michael J. Brophy 

 Cynthia M. Chandley 

 Sean T. Hood 

 William A. Richards 

Attorneys for Phelps Dodge Corporation 

UNITED STATES DEPARTMENT OF JUSTICE Washington, D.C. 

 By Kelly A. Johnson 

 Patrick Barry 

 John L. Smeltzer 

Attorneys for the United States 
FENNEMORE CRAIG, P.C. Phoenix 

By Lauren J. Caster 

Michael J. Pearce 

Thomas R. Wilmoth 

Attorneys for ASARCO L.L.C. 

SALMON, LEWIS & WELDON, P.L.C. Phoenix 

By M. Byron Lewis 

John B. Weldon, Jr. 

Mark A. McGinnis 

Jason P. Alberts 

Attorneys for Salt River Valley Water Users’ Association and 

Salt River Project Agricultural Improvement and Power District 

MOYES STOREY, LTD. Phoenix 

By Lee A. Storey 

 Steve Wene 

Bradley K. Keogh 

Attorneys for City of Safford 

SALMON, LEWIS & WELDON, P.L.C. Phoenix 

By Riney B. Salmon, II 

Ronnie P. Hawks 

Attorneys for San Carlos Irrigation and Drainage District 

BROWN & BROWN LAW OFFICES Pinetop 

By David A. Brown 

Attorneys for Franklin Irrigation District 

LAW OFFICE OF L. ANTHONY FINES Tucson 

By L. Anthony Fines 

Attorneys for Gila Valley Irrigation District 

Rodney B. Lewis Chandler 

John T. Hestand 

Timothy L. Pierson 

Ruth E. Koester 

Attorneys for Gila River Indian Community 

H U R W I T Z, Justice 

¶1 This is an interlocutory appeal by the San Carlos 

Apache Tribe (“Apache Tribe” or “Tribe”) from an order issued in 

the Gila River general stream adjudication. See Ariz. Rev. 

2
Stat. (“A.R.S.”) §§ 45-251 to -264 (2003) (authorizing general 

stream adjudications). The central issue is whether claims 

advanced by the Tribe (and the United States on the Tribe’s 

behalf) are precluded by a consent decree entered in 1935 by the 

United States District Court for the District of Arizona. We 

conclude that the decree precludes the Tribe’s claims to 

additional water from the Gila River mainstem, but not to water 

from tributaries of the Gila. 

I. 

A.

¶2 The San Carlos Apache Reservation was established in 

1872. The Gila River Indian Community (“GRIC”) Reservation was 

established in 1859. Each reservation borders the Gila River.1

¶3 In the late 1800s, the federal government began 

considering a storage dam on the Gila River to provide water to 

the Tribe, GRIC, and non-Indian landowners in the Florence-Casa 

Grande area. In 1924, Congress first appropriated funds for the 

San Carlos Irrigation Project (“San Carlos Project”), a 

reclamation project involving construction of the Coolidge Dam 

 

1 “The Gila River originates in Western New Mexico and flows 

in a general westerly direction across Arizona to its confluence 

with the Colorado River.” United States v. Gila Valley 

Irrigation Dist., 454 F.2d 219, 220 (9th Cir. 1972). “The land 

through which the stream flows is semi-arid or desert land 

requiring irrigation for successful agricultural or 

horticultural results.” Gila Valley Irrigation Dist. v. United 

States, 118 F.2d 507, 508 (9th Cir. 1941).

3
on the Gila River and the creation of the San Carlos Reservoir. 

To facilitate the development of the San Carlos Project, the 

United States entered into agreements in 1924 with landowners 

along the Gila River (the “Landowners’ Agreements”). Under 

these agreements, the landowners conveyed water rights 

appurtenant to their lands to the United States in exchange for 

San Carlos Project waters. 

¶4 In 1925, the United States filed a complaint (the 

“Complaint”) in the United States District Court for the 

District of Arizona on behalf of itself, the Tribe, GRIC, and 

landowners within both the San Carlos Project and the FlorenceCasa Grande Project (an earlier reclamation project on the Gila 

River). The Complaint named as defendants numerous individuals, 

irrigation districts, canal companies, and corporations. The 

Complaint alleged that GRIC, the Apache Tribe, and the 

reclamation projects were entitled to certain quantities of 

water from the Gila River and its tributaries and that the 

defendants’ claims were “in conflict with or adverse to” the 

rights of the tribes and the projects. Compl. ¶ 7. The 

Complaint sought a determination of the rights of the parties 

“to the use of the waters flowing in said Gila River and its 

said tributaries.” Id. ¶ 8. 

¶5 Two years later, the United States filed an amended 

complaint (the “Amended Complaint”). The Amended Complaint 

4
denominated all parties other than the tribes and the United 

States as defendants, but explained that landowners “who have by

contracts devoted their water rights to the said Florence-Casa 

Grande Project, and the San Carlos Project . . . are interested 

on the side of the United States in this action.” Am. Compl. ¶ 

15. In contrast to the initial Complaint, which sought an 

adjudication of rights to the “waters from said Gila River and 

its tributaries,” Compl. ¶ 8, the Amended Complaint sought only 

to adjudicate the parties’ rights to the “waters of the Gila 

River.” Am. Compl. ¶¶ 14, 15. 

¶6 Litigation continued over the next eight years. In 

1935, the United States entered into stipulations dismissing 

without prejudice all defendants who maintained claims only to 

waters of the Gila River tributaries. The remaining parties 

stipulated to the entry of the Globe Equity Decree (the 

“Decree”). The Decree states that the parties “have concluded 

and settled all issues in this cause” and that the Decree 

“embodie[s] . . . and confirm[s]” the settlement of the parties. 

The Decree then “defin[es] and adjudicat[es] the[] claims and 

rights” of the parties by listing the dates of priority and 

amounts of water to which each is entitled. The Decree also 

specifies the places at which the parties may divert water. 

¶7 The Decree is administered by a Water Commissioner 

appointed by the district court. The district court has 

5
retained jurisdiction to enforce and interpret the Decree. 

Litigation interpreting the Decree began soon after its entry 

and has continued ever since.2

B. 

¶8 Arizona law provides for the determination of multiple 

water use claims through general stream adjudications. See 

A.R.S. §§ 45-251 to -264. The Gila River general stream 

adjudication began in 1981 when we ordered a series of petitions 

consolidated into a single proceeding. See In the Matter of the 

Rights to the Use of the Gila River (“Gila I”), 171 Ariz. 230, 

232-33, 830 P.2d 442, 444-45 (1992).3 In 1995, the Legislature 

declared that “an early focus by the general stream adjudication 

courts” should be “the trial of Indian and non-Indian federal 

 

2 The first Ninth Circuit decision involving the Decree was 

Gila Valley Irrigation District v. United States, 118 F.2d 507 

(9th Cir. 1941), and the most recent was United States v. Gila 

Valley Irrigation District, 117 F.3d 425 (9th Cir. 1997). 

3 The history of the Gila River general stream adjudication 

is documented in previous decisions of this and other courts. 

See Arizona v. San Carlos Apache Tribe of Ariz., 463 U.S. 545, 

557-59 (1983) (subsection entitled “The Arizona Cases”); Gen. 

Adjudication of All Rights to Use Water in the Gila River Sys. & 

Source, 201 Ariz. 307, 309-10 ¶¶ 1-2, 35 P.3d 68, 70-71 (2001); 

Gen. Adjudication of All Rights to Use Water in the Gila River 

Sys. & Source, 198 Ariz. 330, 333-34 ¶¶ 1-2, 9 P.3d 1069, 1072-

73 (2000); Gen. Adjudication of All Rights to Use Water in the 

Gila River Sys. & Source, 195 Ariz. 411, 413-14 ¶¶ 1-5, 989 P.2d 

739, 741-42 (1999); Gen. Adjudication of All Rights to Use Water 

in the Gila River Sys. & Source, 175 Ariz. 382, 384-85, 857 P.2d 

1236, 1238-39 (1993); Gila I, 171 Ariz. at 232-33, 830 P.2d at 

444-45; United States v. Superior Court, 144 Ariz. 265, 270-71, 

697 P.2d 658, 663-64 (1985) (subsection entitled “The 

Controversy”). 

6
water claims.” 1995 Ariz. Sess. Laws, ch. 9, § 25(C). The 

superior court accordingly directed interested parties to file 

summary judgment motions as to whether claims raised by or on 

behalf of the Tribe in the general stream adjudication were 

precluded by the Decree. 

¶9 In 2001, GRIC, ASARCO LLC, Phelps Dodge Corporation, 

the City of Safford (“Safford”), the Gila Valley Irrigation 

District (“GVID”), the Franklin Irrigation District (“FID”), and 

the San Carlos Irrigation and Drainage District (“SCIDD”) filed 

summary judgment motions. These motions argued that the Decree 

precludes the Tribe, and the Government on its behalf, from 

asserting additional claims to water from the Gila River and its 

tributaries. Some motions also contended that under the Supreme 

Court’s opinion in Nevada v. United States, 463 U.S. 110 (1983), 

non-parties to the Decree could assert the claimed preclusive 

effect of the Decree. The Tribe also filed a summary judgment 

motion, arguing that the Decree does not preclude its claims to 

additional water from the Gila River or the San Carlos River, a 

tributary of the Gila. The Tribe also argued that the 

Landowners’ Agreements preclude GRIC from asserting claims to 

the San Carlos River. 

¶10 On May 17, 2002, the superior court granted partial 

summary judgment to ASARCO, Phelps Dodge, Safford, SCIDD, GVID, 

and FID. The court held that the Decree was limited to the Gila 

7
River mainstem and did not cover its tributaries. The superior 

court also held that non-parties to the Decree could assert its 

preclusive effect.4

¶11 Given the lengthy nature of general stream 

adjudications, we have provided for interlocutory review of 

certain superior court orders. Special Procedural Order 

Providing for Interlocutory Appeals and Certifications 

(September 26, 1989); see Gila I, 171 Ariz. at 233 n.2, 830 P.2d 

at 445 n.2 (discussing the Special Procedural Order). We 

granted interlocutory review of six issues raised by the Apache 

Tribe and one issue raised by Phelps Dodge. Each of these 

issues turns on the preclusive effect of the Decree.5

 

4 On March 7, 2002, the superior court had entered an order 

holding that “neither GRIC nor the United States on behalf of 

GRIC shall be entitled to claim water rights relating to the 

mainstem of the Gila River . . . except to the extent that such 

rights were granted to them by the Globe Equity Decree.” The 

superior court’s May 17, 2002 order, which is the subject of 

this appeal, refers to and incorporates by reference this 

previous order. 

5

 The six issues raised by the Tribe are as follows: 

(1) “Where the San Carlos Apache Reservation was established 

pursuant to the Apache Treaty of 1852 as a Permanent Tribal 

Homeland of nearly 2 million acres, with nearly 1,500,000 acres 

on the Gila River, did the Superior Court err when it denied the 

Apache Tribe a trial on the merits of its claims by granting a 

motion for partial summary judgment holding that the doctrine of 

res judicata preclude[s] the Tribe from claiming water for its 

Tribal homeland in excess of the United States[’] right to water 

for 1,000 acres under the Globe Equity Decree?” (2) “Did the 

Superior Court err in ruling that [the] statement of facts in 

its Amended Order in W1-203 involving GRIC also applies to the 

8
¶12 This Court has jurisdiction over this interlocutory 

appeal pursuant to Article 6, Section 5(3) of the Arizona 

Constitution and the Special Procedural Order.6 We review grants 

_______________________________ 

Apache Tribe in W1-206?” (3) “Did the Trial Court err when it 

denied the Apache Tribe’s request for an evidentiary hearing on 

the adequacy of the representation of the United States as its 

Trustee under § 42(1)(e) of the Restatement (Second) of 

Judgments[,] and ruled that res judicata applies to the Apache 

Tribe under [the] Decree?” (4) “Did the Superior Court err 

where it failed to conclude that the United States lacked any 

authority from Congress to represent the Apache Tribe in Globe 

Equity or to dispose of Tribal property which would preclude the 

application of res judicata; or alternatively, where it failed 

to conclude that the issue of lack of authority is a disputed 

genuine issue[] of material fact?” (5) “Did the Superior Court 

err in failing to determine that the Landowners’ Agreement of 

1924 or the Decree, specifically preclude GRIC, and the United 

States on behalf of GRIC, from claiming any water rights to the 

San Carlos River in the Gila River stream adjudication?” (6) 

“Did the Superior Court err when it ruled that the ‘mutuality 

exception’ under Nevada v. United States, 463 U.S. 110 (1983), 

does not apply to bar any claims that the parties to the Decree 

may have to any of the tributaries of the Gila River in the Gila 

River stream adjudication?” 

Phelps Dodge raised the following issue: 

“Did the Superior Court err when it found that the claims of the 

parties in the Globe Equity 59 proceedings to waters of the Gila 

River’s tributaries had been ‘split’ from those same parties’ 

claims to the main stem waters of the Gila River, and therefore 

that such tributary claims had not been part of the GE 59 Decree 

and were not affected by the same preclusive, res judicata

effects that the GE 59 Decree had on the parties’ claims to the 

river’s main stem?” 

6 Our Special Procedural Order “is the exclusive remedy for 

the presentation of interlocutory issues to this court in this 

adjudication” and was issued pursuant to Article 6, Section 5 of 

the Arizona Constitution, A.R.S. § 45-259 and § 12-2101 (2003), 

and Rule 19(a)(3) and (f) of the Arizona Rules of Civil 

Appellate Procedure. Gila I, 171 Ariz. at 233 n.2, 830 P.2d at 

445 n.2. 

9
of summary judgment de novo. See Duncan v. Scottsdale Med. 

Imaging, Ltd., 205 Ariz. 306, 308 ¶ 2, 70 P.3d 435, 437 (2003).7

II. 

¶13 Federal law dictates the preclusive effect of a 

federal judgment. See Semtek Int’l Inc. v. Lockheed Martin 

Corp., 531 U.S. 497, 507 (2001) (noting that state courts cannot 

give federal judgments “merely whatever effect they would give 

their own judgments, but must accord them the effect that [the 

United States Supreme] Court prescribes”); Heck v. Humphrey, 512 

U.S. 477, 488 n.9 (1994) (“State courts are bound to apply 

federal rules in determining the preclusive effect of federalcourt decisions on issues of federal law.”); First Pac. Bancorp 

v. Helfer, 224 F.3d 1117, 1128 (9th Cir. 2000) (“When 

considering the preclusive effect of a federal court judgment, 

we apply the federal law of claim preclusion.”); Restatement 

(Second) of Judgments (“Second Restatement”) § 87 (1982) 

(“Federal law determines the effects under the rules of res 

judicata of a judgment of a federal court.”). Thus, our task is 

to give the Decree the same preclusive effect as the federal 

courts would give it. 

_______________________________ 

7 After granting review, we entered an order permitting 

“[a]ny party that properly filed a notice of appearance in this 

matter” to submit a brief. Pursuant to that order, the United 

States, the Apache Tribe, GRIC, Phelps Dodge, ASARCO, SCIDD, 

Safford, GVID, FID, and Salt River Project (“SRP”) filed briefs. 

10
¶14 We deal today with the issue of claim preclusion, 

formerly referred to as res judicata. 

Simply put, the doctrine of res judicata provides that 

when a final judgment has been entered on the merits 

of a case, ‘it is a finality as to the claim or demand 

in controversy, concluding parties and those in 

privity with them . . . as to every matter which was 

offered and received to sustain or defeat the claim or 

demand . . . .’ 

Nevada, 463 U.S. at 129-30 (quoting Cromwell v. County of Sac, 

94 U.S. 351, 352 (1876)) (internal alteration omitted); see also

Montana v. United States, 440 U.S. 147, 153 (1979) (“Under res 

judicata, a final judgment on the merits bars further claims by 

parties or their privies based on the same cause of action.”). 

The defense of claim preclusion has three elements: (1) an 

identity of claims in the suit in which a judgment was entered 

and the current litigation, (2) a final judgment on the merits 

in the previous litigation, and (3) identity or privity between 

parties in the two suits. Blonder-Tongue Lab., Inc. v. Univ. of 

Ill. Found., 402 U.S. 313, 323-24 (1971).8

 

8 Only claim preclusion is at issue in this case. 

“‘[C]onsent judgments ordinarily support claim preclusion but 

not issue preclusion.’” Arizona v. California, 530 U.S. 392, 

414 (2000) (quoting 18 Charles Alan Wright, Arthur R. Miller & 

Edward H. Cooper, Federal Practice and Procedure § 4443 (1981)). 

This is because issue preclusion (formerly referred to as 

collateral estoppel) “attaches only when an issue of fact or law 

is actually litigated and determined by a valid and final 

judgment, and the determination is essential to the judgment. 

In the case of a judgment entered by confession, consent, or 

default, none of the issues is actually litigated.” Id.

(internal alterations and citations omitted). 

11
¶15 The parties agree that the Decree is a final judgment 

and satisfies the second element of claim preclusion. The 

parties differ sharply, however, as to whether the other two 

elements of claim preclusion – an identity of claims and privity 

– are present in this case. We address these issues in turn 

below. 

III.

¶16 The parties advance very different positions as to

what claims were asserted in the Globe Equity litigation and 

adjudicated by the Decree. The Tribe argues that the United 

States (as trustee) asserted only a theory of prior 

appropriation. The Tribe contends that the Decree therefore 

does not address the Tribe’s “aboriginal” water rights or 

Winters reserved water rights.9

 The Tribe also argues that the 

Decree did not involve claims to the tributaries of the Gila 

River, particularly the San Carlos River. The United States 

agrees with the Tribe with respect to claims to tributaries of 

the Gila River, but does not expressly contest that the Decree 

covered all claims to water from the Gila River mainstem. GRIC 

takes no position as to whether the various parties’ motions for 

_______________________________ 

9 As the Supreme Court has noted, its decision in Winters v. 

United States, 207 U.S. 564 (1908), established that when the 

federal government creates an Indian reservation, it “impliedly 

reserve[s] a right to the amount of . . . water necessary to 

effectuate the purposes” of the reservation. Nevada, 463 U.S. 

at 116 n.1. 

12
summary judgment should have been granted, but argues that the 

Globe Equity litigation sought to quantify water rights for only 

the Gila River mainstem. 

¶17 In contrast, Phelps Dodge, SCIDD, Safford, GVID and 

FID argue that the Decree resolved all of the Tribe’s claims to 

water both in the Gila River mainstem and its tributaries. SRP 

argues that the Decree precludes the Tribe from asserting 

additional claims to the Gila River mainstem, but takes no 

position with respect to the tributaries. ASARCO contends that 

the Apache Tribe and the United States are precluded only from 

asserting claims for additional water from the Gila River and 

the San Carlos River, but that they may assert claims to waters 

from other Gila River tributaries; ASARCO also argues that the 

Decree awarded waters of the San Carlos River to ASARCO through 

its predecessor, Kennecott Copper Corporation (“Kennecott”). 

A. 

¶18 The Supreme Court of the United States has never 

precisely defined the test for determining if there is an 

identity of claims in two actions for purposes of claim 

preclusion. Before the adoption of the Federal Rules of Civil 

Procedure in 1938, federal case law focused on the “causes of 

action” asserted in the two suits. See, e.g., United States v. 

Memphis Cotton Oil Co., 288 U.S. 62, 67-68 (1933) (“A ‘cause of 

action’ may mean one thing for one purpose and something 

13
different for another.”); see also O.L. McCaskill, Actions and 

Causes of Action, 34 Yale L.J. 614, 614 (1925) (“The cause of 

action has not been understood. Eminent writers . . . have 

failed to agree as to its character and scope.”). In those 

days, “the courts were prone to associate claim with a single 

theory of recovery, so that, with respect to one transaction, a 

plaintiff might have as many claims as there were theories of 

the substantive law upon which he could seek relief against the 

defendant.” Second Restatement § 24 cmt. a. 

¶19 Under this approach, the federal courts developed a 

number of tests for determining whether two causes of action 

were the same for purposes of claim preclusion. One test 

focused on the “primary right” of the plaintiff that allegedly 

had been infringed. See, e.g., Baltimore S.S. Co. v. Phillips, 

274 U.S. 316, 321 (1927) (“A cause of action does not consist of 

facts, but of the unlawful violation of a right which the facts 

show.”). Another test focused on whether the same evidence 

considered in the first suit would sustain the second. See

Restatement of Judgments (“First Restatement”) § 61 (1942) 

(“[T]he plaintiff is precluded from subsequently maintaining a 

second action based upon the same transaction, if the evidence 

needed to sustain the second action would have sustained the 

first action.”); see also John F. Wagner, Jr., Annotation, 

Proper Test to Determine Identity of Claims for Purposes of 

14
Claim Preclusion by Res Judicata Under Federal Law, 82 A.L.R. 

Fed. 829 (1987) (collecting case law establishing different 

tests). 

¶20 After the adoption of the Federal Rules of Civil 

Procedure in 1938, the “tests for determining the identity of a 

claim or cause of action . . . developed concomitantly with the 

evolution of modern civil procedure.” Wagner, supra, at 836; 

see also Nevada, 463 U.S. at 130 (noting that “[d]efinitions of 

what constitutes the ‘same cause of action’ have not remained 

static over time,” and citing the changes between the First and 

Second Restatements of Judgments). “With the adoption of the 

Federal Rules of Civil Procedure and the unified form of action 

. . . much of the controversy over ‘cause of action’ abated.” 

United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966). 

Thereafter, the test for determining the identity of claims 

focused on the “transaction” or “natural grouping or common 

nucleus of operative facts” making up the plaintiff’s claims. 

Second Restatement § 24 cmt. b; see also Williamson v. Columbia 

Gas & Elec. Corp., 186 F.2d 464, 470 (3d Cir. 1950) (noting that 

the “modern systems of pleading, especially the federal system, 

as exemplified by the free permissive joinder of claims, liberal 

amendment provisions, and compulsory counterclaims” altered the 

definition of “claim” for purposes of claim preclusion). 

¶21 “Seven of the thirteen federal circuit courts, as well 

15
as the Claims Court have thus far expressly adopted the [Second] 

Restatement’s transactional approach” to defining a claim for 

purposes of claim preclusion. Wagner, supra, at 837. While the 

Supreme Court has not explicitly adopted the Second 

Restatement’s transactional approach, it has applied a 

transactional analysis in several different contexts in which 

the definition of “claim” was legally significant. See, e.g., 

United Mine Workers, 383 U.S. at 725 (holding that for purposes 

of pendent jurisdiction the “state and federal claims must 

derive from a common nucleus of operative fact”); Reeves v. 

Beardall, 316 U.S. 283, 286 (1942) (holding that because the 

plaintiff’s “two claims arose out of wholly separate and 

distinct transactions,” the district court’s decision on one 

claim was a final judgment for purposes of Rule 54(b)). 

¶22 We assume, without deciding, that the federal courts 

would utilize the Second Restatement’s transactional test for 

determining the identity of claims in this case. Under the 

Second Restatement, the determination of what “factual grouping 

constitutes a ‘transaction’” is “not capable of mathematically 

precise definition; it invokes a pragmatic standard to be 

applied with attention to the facts of the case.” Second 

Restatement § 24(2), cmt. b. Defining the transaction that 

makes up a claim involves a consideration of “whether the facts 

are related in time, space, origin, or motivation, whether they 

16
form a convenient trial unit, and whether their treatment as a 

unit conforms to the parties’ expectations . . . .” Id. § 

24(2). 

¶23 Under the Second Restatement test, the claims to the 

Gila River mainstem asserted by the United States in the Globe 

Equity litigation would not seem to be part of the same 

“transaction” as its claims to the tributaries. Because claims 

to water depend in part on the location of the party asserting 

the claim, the facts needed to establish a claim to the Gila 

River mainstem are necessarily spatially distinct from those 

needed to establish a claim to a tributary. The “origins” of 

these claims may also be dissimilar. Moreover, the dismissal 

without prejudice from the Globe Equity litigation of all 

defendants with claims to the tributaries indicates that the 

parties determined that the most “convenient trial unit” for 

claims to the Gila River mainstem was one that excluded the 

tributaries. That dismissal also indicates that the parties 

expected that claims to waters of the tributaries would be 

resolved later. 

B. 

¶24 We need not, however, decide today whether the Second 

Restatement test, or the earlier “cause of action” test of the 

17
First Restatement, governs the preclusive effect of the Decree.10 

Whatever the appropriate test for establishing identity of 

claims in two actions, it is clear that parties to a consent 

decree can agree to limit the decree’s preclusive effects. “The 

basically contractual nature of consent judgments has led to 

general agreement that preclusive effects should be measured by 

the intent of the parties.” 18 Charles Alan Wright, Arthur R. 

Miller & Edward H. Cooper, Federal Practice and Procedure § 4443 

(1981).11 Thus, while a judgment will ordinarily preclude later 

 

10 Because the Decree was entered in 1935, it is not clear 

under federal law what test would have applied then. See 

Nevada, 463 U.S. at 131 n.12 (noting that more than one test for 

identity of claims was used in 1944 when the Orr Ditch decree 

was entered). 

11 Many federal cases recognize this principle. See, e.g., 

United States ex rel. Barajas v. Northrop Corp., 147 F.3d 905, 

911 (9th Cir. 1998) (“A settlement can limit the scope of the 

preclusive effect of a dismissal with prejudice by its terms.”); 

Satsky v. Paramount Commc’ns, Inc., 7 F.3d 1464, 1468 (10th Cir. 

1993) (quoting same language from Wright & Miller, supra, § 

4443); Int’l Union of Operating Eng’rs-Employers Constr. Indus. 

Pension, Welfare & Training Trust Funds v. Karr, 994 F.2d 1426, 

1432-33 (9th Cir. 1993) (holding that parties wishing to 

“preclude the application of res judicata to a future action 

. . . can reserve that right” by agreement, and referring to 

Wright & Miller, supra, § 4443); Keith v. Aldridge, 900 F.2d 

736, 740-41 (4th Cir. 1990) (citing Wright & Miller, supra, § 

4443 for the proposition that “[w]hen a consent judgment entered 

upon settlement by the parties of an earlier suit is invoked by 

a defendant as preclusive of a later action, the preclusive 

effect of the earlier judgment is determined by the intent of 

the parties”); May v. Parker-Abbott Transfer & Storage, Inc., 

899 F.2d 1007, 1010 (10th Cir. 1990) (“This court recognizes 

that consent decrees are of a contractual nature and, as such, 

their terms may alter the preclusive effects of a judgment.”) 

(citing Wright & Miller, supra, § 4443). 

18
litigation of “all rights of the plaintiff to remedies against 

the defendant with respect to all or any part of the 

transaction,” Second Restatement § 24(1), that rule does not 

apply when the parties “have agreed in terms or in effect that 

the plaintiff” may reserve a portion of its claim, id. § 

26(1)(a). This is because the “main purpose” of precluding 

further litigation on a claim “is to protect the defendant from 

being harassed by repetitive actions based on the same claim. 

The rule is . . . not applicable where the defendant consents, 

in express words or otherwise” to allow the plaintiff to pursue 

his claim in multiple suits. Id. § 26 cmt. a.12

¶25 The parties’ agreement to limit the preclusive effect 

of a judgment by permitting the plaintiff to try only a portion 

of its claim may be either express or implied. Id. § 26(1)(a). 

The Second Restatement elucidates this point: 

After a collision in which A suffers personal injuries 

and property damage, A commences in the same 

jurisdiction one action for his personal injuries and 

another for the property damage against B. B does not 

 

12 In determining the preclusive effect of the Decree, we are 

mindful that “since consent decrees . . . have many of the 

attributes of ordinary contracts, they should be construed 

basically as contracts.” United States v. ITT Cont’l Baking 

Co., 420 U.S. 223, 236 (1975) (footnote omitted). The Decree’s 

“scope . . . must be discerned within its four corners, and not 

by reference to what might satisfy the purposes of one of the 

parties to it.” United States v. Armour & Co., 402 U.S. 673, 

682 (1971). Thus, the Decree “must be construed as it is 

written, and not as it might have been written had the plaintiff 

established his factual claims and legal theories in 

litigation.” Id. 

19
make known in either action his objection (usually 

called “other action pending”) to A’s maintaining two 

actions on parts of the same claim. After judgment 

for A for the personal injuries, B requests dismissal 

of the action for property damage on the ground of 

merger. Dismissal should be refused as B consented in 

effect to the splitting of the claim. 

Id. § 26 cmt. a, illus. 1. Applying this principle, the Ninth 

Circuit has held that a county’s failure to object in state 

court proceedings to a plaintiff’s attempt to reserve its Fifth 

Amendment takings claim for federal court impliedly permitted 

the plaintiff to bring the later federal action. Dodd v. Hood 

River County, 59 F.3d 852, 861-62 (9th Cir. 1995). 

¶26 In addition to permitting parties to limit the 

preclusive effects of their judgments, federal law recognizes 

the power of a court in a first action to reserve the 

plaintiff’s right to maintain a second action on part of a 

claim. Id. at 862 (“A court may be able to reserve part of a 

plaintiff’s claim for subsequent litigation by expressly 

omitting any decision with regard to it in the first 

judgment.”); Second Restatement § 26(1)(b). Thus, when a court 

determines that its judgment is without prejudice “to a second 

action on the omitted part of the claim,” that determination 

prevents the first judgment from obtaining preclusive effect in 

the second action. Second Restatement § 26 cmt. b; see also 

Wright & Miller, supra, § 4413 (“A judgment that expressly 

leaves open the opportunity to bring a second action on 

20
specified parts of the claim or cause of action that was 

advanced in the first action should be effective to forestall 

preclusion.”). 

¶27 Given this well-recognized right of the parties and 

the courts to limit the preclusive effect of their judgments, we 

must determine what claims were actually adjudicated by the 

Globe Equity litigation and what preclusive effect the Decree 

was intended to have. 

1. 

¶28 The first issue we address is whether the Decree 

adjudicated claims to the tributaries of the Gila River. The 

starting point in that analysis is the language of the Complaint 

and the Amended Complaint. The initial Complaint stated that 

the 

sole source of water necessary and proper for the 

economical and successful irrigation and cultivation 

of such lands under the said San Carlos Irrigation 

Project is the said Gila River together with its 

tributaries thereto lying to the East of the said Gila 

Indian Reservation, to-wit: The San Pedro River, the 

San Carlos River, San Francisco River, Blue River and 

Eagle Creek[.] 

Compl. ¶ 5 (emphasis added). The prayer for relief in the 

initial Complaint asked 

[t]hat the court by its decree determine the relative 

rights of the parties hereto, in area and extent, and 

in duration according to their relative rights 

respectively in priority of appropriation, in to and

of the waters of the said Gila River and its 

tributaries in Arizona and New Mexico, including 

21
natural flow and flood waters, to the end that it may 

be known how much of said waters may be diverted from 

said river by the parties hereto and for what 

purposes, where, by what means of diversion and with 

what priorities. 

Id. ¶ 8 (emphasis added). The Complaint specifically referred 

to the “Gila River and its tributaries” numerous times, 

including the report of the waters previously appropriated by 

the Apache Tribe, id. ¶ 3(c), the identification of the 

defendants and their claims, id. ¶ 7, and the prayer for relief, 

id. ¶ 8. 

¶29 In contrast, the Amended Complaint specifically 

excludes the Gila River tributaries. In defining the 

defendants’ claims, the Amended Complaint states: 

Each of the defendants . . . claims some right to 

divert water from the Gila River as it flows between a 

line 10 miles east of the parallel to the dividing 

line between Arizona and New Mexico, and the 

confluence of the Salt River with the Gila River, and 

after the following tributaries of the Gila River, the 

San Francisco River, the San Carlos River, the San 

Pedro River, and the Santa Crus [sic] River, 

respectively, have joined the main stream, and all but 

a few of said diversions being in the District of 

Arizona; or the said defendants claim some right to 

store the water of said river, or of some tributary 

thereof, either within or above the stretch of the 

same as just described. 

Am. Compl. ¶ 15 (emphasis added). Thus, the portion of the Gila 

River placed in dispute by the Amended Complaint was the Gila 

River after the tributaries join the mainstem. 

¶30 The prayer for relief in the Amended Complaint 

22
requested 

[t]hat the Court, by its decree, determine the rights 

of the parties hereto to the waters of said river and 

its tributaries and the rights of said parties to 

divert water from said river within the area aforesaid

and for storage above, to the end that it may be known 

how much of said waters may be diverted from said 

river by the parties hereto and for what purposes, 

where, by what means of diversion and with what 

priorities. 

Id. Prayer (emphasis added). Although the prayer at first seems 

to suggest that the parties’ rights to water in the Gila River 

tributaries are in fact at issue, it then makes clear that the 

Government is only seeking to adjudicate rights in the “area 

aforesaid” and from “said river” – language consistent with the 

notion that the Amended Complaint was directed only to the 

parties’ rights to waters in the Gila River mainstem. This 

conclusion is buttressed by paragraph fifteen of the Amended 

Complaint which makes clear that the “area aforesaid” is the 

“Gila River . . . after the following tributaries . . . have 

joined the main stream.” Id. ¶ 15. 

¶31 The procedural history of the Decree reinforces this 

conclusion. After filing the Amended Complaint, the United 

States obtained the dismissal of all defendants with claims 

solely to the tributaries of the Gila River. The Decree 

explicitly states that certain defendants, all of whom 

maintained claims to the tributaries, were dismissed “because 

their claims and rights, if any, were and are outside the scope 

23
of said suit as same was and is outlined and defined in the 

amended complaint herein.” Both the defendants and their 

“claim[s] or rights to the use of water which said defendants 

. . . now or hereafter may have” were dismissed “without 

prejudice.” This was because “five stipulations between the 

plaintiff and the defendants” established “that the dismissal of 

said defendants should be accomplished upon motion of the 

plaintiff and Order of this Court.” 

¶32 The effect of this dismissal without prejudice was to 

exclude from the Globe Equity litigation any claims by the 

dismissed defendants to the tributaries of the Gila River. See 

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396 (1990) (A 

“dismissal without prejudice is a dismissal that does not 

operate as an adjudication upon the merits and thus does not 

have a res judicata effect.”) (internal citation and alterations 

omitted). Indeed, the Decree expressly so states, providing 

that defendants with claims to the tributaries would “be left as 

though they never had been named or made parties defendant.” 

The court “confirmed” that the dismissals were “made a part of 

this decree to protect [the defendants’] rights in that 

respect.” Given that the Decree made plain that it was not 

resolving the claims of the dismissed defendants to water of the 

tributaries, it naturally follows that the Decree also did not 

adjudicate the Tribe’s claims to the tributaries, as the 

24
dismissed defendants would have been necessary parties to any 

such adjudication.

¶33 Our conclusion that claims to water from the 

tributaries were not adjudicated by the Decree is further 

supported by the Decree’s schedule of rights and priorities. 

The Decree states that “the Gila River is the stream from which 

the water called for under each of said rights is and may be 

diverted.” The portion of the Decree establishing the rights of 

the various parties to use the waters of the Gila River refers 

only to the “waters of the Gila River.” In enumerating the 

rights of GRIC, the Apache Tribe, the San Carlos Project, and 

the Gila Crossing District to divert water, the Decree 

specifically refers to their rights to “divert . . . the waters 

of the Gila River.” Similarly, in establishing the parties’ 

storage rights, the Decree refers to “[t]he right . . . to store 

the waters of the Gila River in the San Carlos Reservoir.” 

Finally, Article XIII states: 

[A]ll of the parties to whom rights to water are 

decreed in this cause . . . are hereby forever 

enjoined and restrained from asserting or claiming--as 

against any of the parties herein . . . --any right, 

title or interest in or to the waters of the Gila 

River, or any thereof, except the rights specified, 

determined and allowed by this decree, and each and 

all thereof are hereby perpetually restrained and 

enjoined from diverting, taking or interfering in any 

way with the waters of the Gila River or any part 

thereof . . . . 

25
(Emphasis added.)13

2. 

¶34 Notwithstanding this compelling evidence that the 

Decree was intended to adjudicate only rights in the Gila River 

mainstem, various parties arguing to the contrary point to 

language in the Decree regarding the proper method for measuring 

the amount of water to be diverted by the so called “upper 

valley defendants”: 

[P]rovided further that the drafts on the stream by 

the upper valley[] defendants shall be limited to a 

seasonal year diversion which will result in an actual 

consumptive use from the stream of not to exceed 

120,000 acre feet of water; said consumptive use made 

in any seasonal year shall be determined by adding the 

recorded flows at a gauging station located in the 

Gila River at Red Rock Box Canyon above the heading of 

the Sunset Canal in New Mexico and a gauging station 

located in the San Francisco River immediately above 

its confluence with the Gila River and deducting from 

said sum the recorded flows at a gauging station 

located on the Southern Pacific Railway bridge 

crossing the Gila River near Calva, Arizona[.] 

(Emphasis added.) Rather than establishing any right to the 

waters of the San Francisco River, however, this provision 

merely establishes a method of measuring flows in the Gila River 

based on readings at certain gauging stations. Some of the 

stations used to measure those flows are located on the 

 

13 Several parties argue that we should read the phrase “or 

any thereof” in Article XIII to mean “or any tributary thereof.” 

We decline that invitation. In context, the phrase is most 

naturally read as referring to a portion of the waters of the 

Gila River mainstem. 

26
tributaries that feed into the Gila River, but the Decree does 

not establish any party’s right to divert from those flows as 

opposed to the mainstem itself. 

¶35 ASARCO also argues that the Decree awarded Kennecott, 

its predecessor, “the water from the San Carlos River.” ASARCO 

relies on a provision in the Decree describing Kennecott’s right 

to divert water when upstream defendants have been given water 

from the “available storage in the San Carlos Reservoir.” When 

that happens, Kennecott is entitled to an apportionment “of the 

natural flow of the Gila River” as “gauged by and deemed to 

correspond with the natural flow of the Gila River and San 

Carlos River at the points where said streams enter the San 

Carlos Reservoir.” ASARCO claims that this language gives it 

rights to San Carlos River water. 

¶36 We do not so read the Decree. Because the Decree 

establishes the parties’ rights to water both from the flow of 

the Gila River and from waters stored in the San Carlos 

Reservoir, the Decree required some method for gauging how much 

of each source was being used. The reference to the San Carlos 

River upon which ASARCO relies simply enables the Water 

Commissioner to measure the flow of water in the Gila River to 

27
which Kennecott is entitled.14 The provision does not award 

Kennecott any water from the San Carlos River, nor does any 

other portion of the Decree. 

3. 

¶37 SCIDD argues that “the practical impacts” of the 

Decree indicate that it must have adjudicated rights to waters 

of the tributaries of the Gila River in addition to the 

mainstem. SCIDD asserts that because “the Gila River is largely 

a product of the inflows from the Gila River’s tributaries[,] 

[i]f those tributaries can be dammed or diverted with impunity, 

the protections offered by the Globe Equity Decree are 

illusory.” It does not follow, however, that simply because the 

rights of parties on the tributaries were not adjudicated in the 

Globe Equity litigation, such rights are limitless or that 

parties with claims to the waters of the tributaries may divert 

the flow of those tributaries with “impunity.” The rights of 

those with claims to the Gila River tributaries will be 

determined in this Gila River general stream adjudication. To 

the extent that those rights conflict with rights vested under 

the Decree, that issue can be addressed by the superior court in 

future proceedings. 

 

14 Kennecott’s property was not located on the San Carlos 

River, but rather on the Gila River, well downstream from the 

confluence of the San Carlos and Gila Rivers. 

28
4. 

¶38 In sum, we conclude that the Decree adjudicated only 

claims to the Gila River mainstem and not to its tributaries. 

The Decree therefore has no preclusive effect as to the 

tributaries. 

C. 

¶39 The next issue is what claims to the mainstem were 

adjudicated by the Decree. The Tribe argues that the Decree 

adjudicated only its appropriative rights and not aboriginal or 

Winters rights. Other parties claim that the Decree adjudicated 

all claims of the Tribe to the mainstem. 

¶40 The starting point is once again the language of the 

Amended Complaint. The Amended Complaint first alleges 

generally that the members of the Apache Tribe were “occupants 

and possessors of large areas of land with water rights 

appertaining thereto.” Am. Compl. ¶ 3. The Amended Complaint 

declares that the United States has the power to assert claims 

to water on behalf of the Apache Tribe and GRIC because 

on its acquisition from Mexico (by the Treaty of 

Guadalupe-Hidalgo and the Gadsden Purchase) of the 

territory within which are the lands occupied by . . . 

the Apache Indians . . . [the United States] became 

and ever since has remained the guardian of the Indian 

inhabitants, including the said Pimas and Apaches, and 

became the owner of the soil of said territory . . . . 

The United States, upon such acquisition, furthermore 

became the full sovereign of said territory, having 

both national and municipal or State sovereignty; and 

it had plenary power over said lands and waters. 

29
Id. ¶ 7. The Amended Complaint goes on to allege that 

[t]he Apache Indians, at a long time antedating the 

acquisition by the United States of the lands ceded as 

aforesaid by Mexico, occupied and possessed and owned, 

under the Indian title of occupancy and possession 

. . . a large area which included that now reserved to 

them by the establishment of their reservation known 

as the San Carlos Indian Reservation. 

Id. ¶ 9. 

¶41 After establishing a chain of title to the lands of 

the Apache Tribe, the Amended Complaint asserts that the Tribe’s 

right to water is based on theories of “occupancy and 

possession”: 

These Indians are entitled by their rights of 

occupancy and possession and on account of the 

reservations thus made, to sufficient water for the 

irrigation of the lands deemed necessary for them to 

irrigate from the Gila River, excluding the San Carlos 

River, three thousand (3,000) acres of land, which 

lands are of a good agricultural character and are 

susceptible of irrigation from said streams and 

require irrigation to make them capable of producing 

crops . . . . The said water rights have a priority, 

antedating all priorities of white persons and as of 

the date when the Apache Indians first came to occupy 

said territory, which was before the United States or 

Mexico acquired sovereignty thereof, as well as a 

priority as of the date of said first reservation, 

which was December 14, 1872. 

Id. ¶ 9(b). 

¶42 The Amended Complaint then sets forth a separate 

claim, based on prior appropriation, with a priority date of 

between 1873 and 1901: 

30
The Indians of said San Carlos Reservation irrigated 

with the waters of the Gila River, exclusive of the 

waters of the San Carlos River, through a number of 

ditches on their reservation aforesaid, from the year 

1873 to the year 1900, and since, beginning with 100 

acres and increasing to 2,500 acres of land in the 

year 1900, and on account thereof the United States is 

entitled, as a mere appropriator, to 32 second-feet of 

water, continuous flow, with a limitation of 12,800 

acre-feet of water per annum, with priorities as of 

. . . prior to the year 1901. 

Id. ¶ 10. 

¶43 Finally, the Amended Complaint summarizes the water 

rights the United States is claiming for the Tribe. It states 

that the federal government has 

reserved and appropriated, acquired, and owns, and is 

entitled to use for said Indian reservations . . . . 

371⁄2 second-feet of water with a limitation of 15,000 

acre-feet per annum, and 32 second-feet with a yearly 

limitation of 12,000 acre-feet . . . with priorities, 

respectively, as of the year 1846, when the United 

States obtained sovereignty over that territory, as 

well as of December 14, 1872. 

Id. ¶ 14, 14(b) (emphasis added). 

¶44 Contrary to the Tribe’s argument, the Amended 

Complaint establishes that the United States was asserting 

rights in addition to those based on prior appropriation. The 

Amended Complaint describes the Tribe’s rights to water both 

“reserved and appropriated,” id. ¶ 14, and claims that such 

rights derive from both “occupancy and possession,” id. ¶ 9(b). 

Indeed, because the Amended Complaint asserts a claim to water 

from 1846, almost thirty years prior to 1873, the first year in 

31
which the Tribe is alleged to have begun irrigation, the United 

States necessarily must have asserted claims under theories in 

addition to prior appropriation. Id. ¶ 14. This is confirmed 

by the fact that the Amended Complaint claims that the Tribe is 

entitled to water with two different priority dates, 1846 and 

1872. Id. 

¶45 The Decree also indicates that the Globe Equity 

litigation adjudicated the totality of the Tribe’s water rights 

in the Gila River mainstem. The Decree’s introduction states 

that 

the plaintiff and the parties defendant . . . have 

concluded and settled all issues in this cause . . . 

and mutually have agreed . . . that such settlement 

should be embodied in and confirmed and made effective 

by way of the within decree of the Court in this 

cause, defining and adjudicating their claims and 

rights as against each other in identical form and 

substance as hereinafter set forth[.] 

(Emphasis added.) Article XIII then states: 

[A]ll of the parties to whom rights to water are 

decreed in this cause . . . are hereby forever 

enjoined and restrained from asserting or claiming--as 

against any of the parties herein . . . --any right, 

title or interest in or to the waters of the Gila 

River, or any thereof, except the rights specified, 

determined and allowed by this decree, and each and 

all thereof are hereby perpetually restrained and 

enjoined from diverting, taking or interfering in any 

way with the waters of the Gila River or any part 

thereof . . . . 

(Emphasis added.) It is difficult to imagine more explicit 

language indicating that the Decree was intended to resolve all 

32
of the parties’ claims to the Gila River mainstem. 

¶46 Based on the language of the Complaint, the Amended 

Complaint, and the Decree, we conclude that all of the Tribe’s 

water rights, under all theories, to the Gila River mainstem 

were placed at issue and resolved in the Globe Equity 

litigation. The Decree precludes all further claims to the 

mainstem of the Gila River by the parties to the Decree. 

IV. 

¶47 The United States was a party to the Globe Equity 

litigation, but the Tribe was not. We must therefore next 

determine whether the United States and the Tribe were in 

privity in the Globe Equity litigation such that the Tribe is 

bound by the Decree.15

¶48 We start from the premise that the United States’ 

representation, as trustee, of a tribe in litigation that 

results in a judgment or decree ordinarily binds that tribe to 

the decree. The Supreme Court so held in 1912, in a case 

involving the authority of the federal government to represent 

the Cherokee Nation in litigation instituted for the return of 

title to certain Indian lands. Heckman v. United States, 224 

U.S. 413, 444 (1912). The Court noted that the “efficacy” of 

 

15 In June of 1935, before the entry of the Decree, the Pima 

Indian Tribal Council (now GRIC) petitioned for leave to 

intervene as a party in the Globe Equity litigation; the 

district court denied the request. The Apache Tribe did not 

seek to intervene before the entry of the Decree. 

33
the litigation “does not depend upon the Indians’ acquiescence” 

in the litigation. Id. at 444-45. Rather, because the United 

States instituted suit on behalf of the Indians, “[i]t was not 

necessary to make the[] grantors parties, for the government was 

in court on their behalf.” Id. at 445. The resulting decree 

obtained by the Government in the litigation “bind[s] not only 

the United States, but the Indians whom it represents in the 

litigation.” Id. at 445-46. 

¶49 Similarly, in Arizona v. California, the Supreme Court 

noted that the “United States’ action as [the Tribes’] 

representative w[ould] bind the Tribes to any judgment” entered 

in the litigation. 460 U.S. 605, 615 (1983) (citing Heckman, 

224 U.S. at 444-45). The Court noted that, absent certain 

specific language included in the decree in that case, “[t]here 

is no question that if these claims [currently asserted by the 

Tribe] were presented in a different proceeding, a court would 

be without power to reopen the matter due to the operation of 

res judicata.” Id. at 617. 

A. 

¶50 The Tribe nonetheless argues that the United States 

lacked authority to represent it in the Globe Equity litigation. 

First, the Tribe asserts that “the United States lacked any 

authority from Congress to represent the Apache Tribe in [the] 

Globe Equity [litigation] . . . which would preclude the 

34
application of res judicata.” 

¶51 This argument fails. In 1893, Congress enacted 

legislation specifically providing that “[i]n all States and 

Territories where there are reservations or allotted Indians the 

United States District Attorney shall represent them in all 

suits at law and in equity.” Act of Mar. 3, 1893, ch. 209, § 1, 

27 Stat. 631 (codified as amended at 25 U.S.C. § 175 (2001)). 

Here, the Amended Complaint expressly alleges that the Globe 

Equity litigation was “instituted at the suggestion of the 

Secretary of the Interior and by the direction and authority of 

the Attorney General.” Am. Compl. ¶ 3. This allegation makes 

plain that the United States was proceeding pursuant to 

authority expressly granted by Congress. See Heckman, 224 U.S. 

at 445-46 (“[I]f the United States . . . is entitled to bring a 

suit of this character, it must follow that the decree will bind 

not only the United States, but the Indians whom it represents 

in the litigation.”). 

¶52 Second, the Tribe argues that the Decree is “without 

validity as to the Tribe” because there was no “clear 

congressional authorization to extinguish Apache Tribal water 

rights, as required by the federal common law and the 

Nonintercourse Act, 25 U.S.C. § 177.”16 In support of this 

 

16 In relevant portion, the Nonintercourse Act provides that 

“[n]o purchase, grant, lease, or other conveyance of lands, or 

35
argument the Tribe relies primarily on County of Oneida v. 

Oneida Indian Nation, which held that “the Nonintercourse Act[] 

simply ‘put into statutory form what was or came to be the 

accepted rule—that the extinguishment of Indian title required 

the consent of the United States.’” 470 U.S. 226, 240 (1985) 

(quoting Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 

678 (1974)). 

¶53 The Oneida doctrine has no application here. The 

Decree served to determine the scope of the Tribe’s water 

rights, not to extinguish them. The Ninth Circuit expressly 

recognized this distinction between the definition of tribal 

rights and the extinguishment thereof in United States v. 

Ahtanum Irrigation District (“Ahtanum I”), 236 F.2d 321 (9th 

Cir. 1956), and United States v. Ahtanum Irrigation District

(“Ahtanum II”), 330 F.2d 897 (9th Cir. 1964). Ahtanum I held 

that the Secretary of the Interior “had the power” to enter into 

an “arrangement for the apportionment of the Ahtanum waters” 

under his “general powers of supervision and management” over 

Indians. 236 F.2d at 338. In Ahtanum II, the court clarified 

that 

it must be plain from our original opinion that if we 

ha[d] been called upon to uphold the power of the 

_______________________________ 

of any title or claim thereto, from any Indian nation or tribe 

of Indians, shall be of any validity in law or equity, unless 

the same be made by treaty or convention entered into pursuant 

to the Constitution.” 25 U.S.C. § 177 (2001). 

36
Secretary of the Interior to make a conveyance of the 

waters of Ahtanum Creek to these white landowners we 

would have been confronted with a very serious 

question indeed—a much more difficult question than 

that which we decided. 

330 F.2d at 903 (emphasis added). 

¶54 More recently, in United States v. Truckee-Carson 

Irrigation District, a case involving the Pyramid Lake Paiute 

Tribe’s attack on the 1944 Orr Ditch Decree, the Ninth Circuit 

affirmed the notion that “[t]he authority to represent the Tribe 

in litigation must be distinguished from the authority to 

extinguish tribal property interests.” 649 F.2d 1286, 1300 (9th 

Cir. 1981), amended by 666 F.2d 351 (9th Cir. 1982), aff’d in 

part and rev’d in part on other grounds sub nom. Nevada v. 

United States, 463 U.S. 110 (1983). The court found that 

section 10 of the Reclamation Act of 1902 did not “confer[] on 

the Secretary [of the Interior] authority to extinguish the 

Pyramid Lake Tribe’s water rights.” Id. at 1298. Nonetheless, 

the court held that “an action to quantify reserved water rights 

was within the authority conferred by section 10 of the 

Reclamation Act of 1902.” Id. at 1300. 

¶55 The 1924 Act “[f]or the continuance of construction 

work on the San Carlos Federal irrigation project in Arizona” 

contains language nearly identical to that of section 10 of the 

37
Reclamation Act of 1902.17 Act of June 7, 1924, ch. 288, § 5, 43 

Stat. 475, 476. Thus, while the Government may not have had 

authority to “extinguish” the Tribe’s right to water in the 

Globe Equity litigation, it possessed the power to “represent 

[the Tribe’s] interests in [the] litigation” in order to 

“quantify [the Tribe’s] reserved water rights.” Truckee-Carson, 

649 F.2d at 1300.18

B. 

1. 

¶56 The Tribe next asserts that the United States’ 

representation of the Tribe in the Globe Equity litigation was 

so inadequate as to prevent the presence of privity between the 

 

17 Section 10 of the Reclamation Act of 1902 provides: “[T]he 

Secretary of the Interior is hereby authorized to perform any 

and all acts and to make such rules and regulations as may be 

necessary and proper for the purpose of carrying the provisions 

of this act into full force and effect.” Reclamation Act of 

1902, ch. 1093, § 10, 32 Stat. 388, 390 (codified in scattered 

sections of 43 U.S.C.). The 1924 Act provides: “The Secretary 

of the Interior is hereby authorized to perform any and all acts 

and to make such rules and regulations as may be necessary and 

proper for the purpose of carrying the provisions of this Act 

into full force and effect[.]” Act of June 7, 1924, ch. 288, § 

5, 43 Stat. 475, 476. 

18 The Tribe argues in the alternative that the superior court 

erred “where it failed to conclude that the issue of lack of 

authority is a disputed genuine issue[] of material fact.” The 

Tribe, however, identifies no such issue of fact. Because the 

United States had statutory authority to represent the Tribe, we 

affirm the superior court’s determination that there are no 

genuine issues of material fact precluding a grant of summary 

judgment against the Tribe on this issue. 

38
Tribe and the Government.19 The Tribe relies on § 42(1)(e) of 

the Second Restatement, which provides, in relevant part, as 

follows: 

(1) A person is not bound by a judgment for or against 

a party who purports to represent him if: 

. . . . 

(e) The representative failed to prosecute or 

defend the action with due diligence and reasonable 

prudence, and the opposing party was on notice of 

facts making that failure apparent. 

The Tribe contends that, in the Globe Equity litigation, the 

Government ignored the Tribe’s substantial rights to Gila River 

water under the Winters doctrine, prosecuted the case while 

under an actual conflict of interest, and staffed the case with 

attorneys biased against the Tribe. Moreover, the Tribe alleges 

that “[t]he United States’ representation of the Tribe was so 

grossly deficient as to provide notice to the opposing parties 

of this fact, and to create no legitimate claim of justifiable 

reliance by them.” 

¶57 We begin by assuming, without deciding, that the 

United States’ representation of the Tribe in the Globe Equity 

litigation produced less than desirable results for the Tribe. 

However, our job in this case is not to re-evaluate the 

litigation skills and strategies of the Government’s attorneys 

seventy years after their efforts resulted in the entry of the 

 

19 While the United States does not agree that it provided the 

Tribe with inadequate representation, it supports the Tribe’s 

request for an evidentiary hearing on the claim. 

39
Decree. Rather, we must apply federal law, giving the Decree 

the same preclusive effects as would the federal courts. Cf.

Locklin v. Switzer Bros., Inc., 335 F.2d 331, 334 (7th Cir. 

1964) (“[A] ‘foreign’ federal court will not set aside a 

judgment, in an independent equitable action, unless the 

judgment would be set aside on those same grounds by the ‘home’ 

federal court.”) (citing Bros. Inc. v. W.E. Grace Mfg. Co., 320 

F.2d 594, 607 (5th Cir. 1963)). Thus, we must determine what 

preclusive effect the United States District Court for the 

District of Arizona would provide the Decree. 

¶58 Our role is analogous to that of a federal court 

applying state court preclusion principles to a previous state 

court judgment. See U.S. Const. art. IV, § 1; 28 U.S.C. § 1738 

(1994); Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 

373, 380 (1985) (“‘It has long been established that § 1738 does 

not allow federal courts to employ their own rules of res 

judicata in determining the effect of state judgments. Rather, 

it goes beyond the common law and commands a federal court to 

accept the rules chosen by the State from which the judgment is 

taken.’”) (quoting Kremer v. Chem. Constr. Corp., 456 U.S. 461, 

481-82 (1982)). As the Second Restatement points out, “[i]t has 

long been established that the judgments of the federal courts 

are to be accorded full faith and credit when a question of 

their recognition arises in a state court or in another federal 

40
court.” Second Restatement § 87 cmt. a. 

2. 

¶59 The Supreme Court has never expressly held that the 

Government’s representation of a tribe can be so inadequate as 

to remove privity. The Court, however, has twice rejected 

similar arguments in cases analogous to this one. In Arizona v. 

California, the Court held that the Government’s concurrent 

representation of five tribes in litigation involving the 

Colorado River did not “authorize relitigation of their reserved 

rights.” 460 U.S. at 626. The Court held that 

[a] breach of the United States’ duty to represent the 

Tribes’ interests is not demonstrated merely by 

showing that the government erred in its calculation 

of irrigable acreage, whether by an oversight or, as 

viewed in retrospect, by an unnecessarily cautious 

litigation strategy . . . . [A] claim of inadequate 

representation cannot be supported on this record. 

Id. at 628 n.21. 

¶60 The Court reached a similar result in Nevada, holding 

that the Paiute Tribe was bound by the Government’s 

representation in the Orr Ditch litigation: 

This Court left little room for an argument to the 

contrary in Heckman v. United States, where it plainly 

said that “it could not, consistently with any 

principle, be tolerated that, after the United States 

on behalf of its wards had invoked the jurisdiction of 

its courts . . . these wards should themselves be 

permitted to relitigate the question.” We reaffirm 

that principle now. 

41
463 U.S. at 135 (internal citations omitted, alteration in 

original). 

¶61 The Tribe argues that this case is factually 

distinguishable from the Supreme Court precedents and that the 

Court would apply § 42(1)(e) of the Second Restatement and find 

an absence of privity with respect to the Globe Equity Decree. 

We need not today resolve that issue, however, because we 

conclude that the doctrine of comity compels us to refrain from 

addressing the Tribe’s arguments. 

3.

¶62 Ordinarily, relief from a judgment “must be obtained 

by means of a motion for that purpose in the court that rendered 

the judgment unless relief may be obtained more fully, 

conveniently, or appropriately by some other procedure.” Second 

Restatement § 78. In the federal courts, such a motion is 

governed by Federal Rule of Civil Procedure 60(b).20 Consent 

 

20 Rule 60(b) provides: 

Mistakes; Inadvertence; Excusable Neglect; Newly 

Discovered Evidence; Fraud, Etc. On motion and upon 

such terms as are just, the court may relieve a party 

or a party’s legal representative from a final 

judgment, order, or proceeding for the following 

reasons: (1) mistake, inadvertence, surprise, or 

excusable neglect; (2) newly discovered evidence which 

by due diligence could not have been discovered in 

time to move for a new trial under Rule 59(b); (3) 

fraud (whether heretofore denominated intrinsic or 

extrinsic), misrepresentation, or other misconduct of 

an adverse party; (4) the judgment is void; (5) the 

42
decrees are subject to the requirements of Rule 60(b). Rufo v. 

Inmates of Suffolk County Jail, 502 U.S. 367, 378 (1992). 

¶63 Under Rule 60(b), a court may also “entertain an 

independent action to relieve a party from a judgment . . . .” 

As a general matter, that action “may or may not be begun in the 

court which rendered the judgment.” Fed. R. Civ. P. 60(b) 

advisory committee’s note (1946 Amendment, Subdivision (b)); see 

also Locklin, 335 F.2d at 334 (stating that an “independent 

equitable action may be maintained in any court exercising 

equitable jurisdiction”). 

¶64 However, even if Rule 60(b) facially grants us the 

power to consider the Tribe’s privity arguments in an 

_______________________________ 

judgment has been satisfied, released, or discharged, 

or a prior judgment upon which it is based has been 

reversed or otherwise vacated, or it is no longer 

equitable that the judgment should have prospective 

application; or (6) any other reason justifying relief 

from the operation of the judgment. The motion shall 

be made within a reasonable time, and for reasons (1), 

(2), and (3) not more than one year after the 

judgment, order, or proceeding was entered or taken. 

A motion under this subdivision (b) does not affect 

the finality of a judgment or suspend its operation. 

This rule does not limit the power of a court to 

entertain an independent action to relieve a party 

from a judgment, order, or proceeding, or to grant 

relief to a defendant not actually personally notified 

as provided in Title 28, U.S.C., § 1655, or to set 

aside a judgment for fraud upon the court. Writs of 

coram nobis, coram vobis, audita querela, and bills of 

review and bills in the nature of a bill of review, 

are abolished, and the procedure for obtaining any 

relief from a judgment shall be by motion as 

prescribed in these rules or by an independent action.

43
“independent” attack on the Decree, the doctrine of comity 

counsels to the contrary. “The principle [of comity] is that a 

court should not assume to disturb another court’s disposition 

of a controversy unless there are good reasons for doing so.” 

Second Restatement § 78 cmt. a. 

¶65 Lapin v. Shulton, Inc., 333 F.2d 169 (9th Cir. 1964), 

illustrates the application of the comity doctrine. In that 

case, the Ninth Circuit affirmed a district court’s refusal to 

entertain an action challenging an injunction issued by the 

United States District Court for the District of Minnesota on 

the grounds “that changed circumstances had rendered inequitable 

the prospective application of the decree.” Id. at 170. The 

court held that 

for a nonissuing court to entertain an action for such 

relief would be seriously to interfere with, and 

substantially to usurp, the inherent power of the 

issuing court . . . to supervise its continuing decree 

by determining from time to time whether and how the 

decree should be supplemented, modified or 

discontinued in order properly to adapt it to new or 

changing circumstances. 

Id. at 172. The Ninth Circuit found that it “need not go so far 

as to hold that these considerations and this interpretation of 

Rule 60(b) deprive all courts other than the issuing court of 

jurisdiction in such a case as this.” Id. Nonetheless, 

“considerations of comity and [the] orderly administration of 

justice demand that the nonrendering court should decline 

44
jurisdiction of such an action and remand the parties for their 

relief to the rendering court, so long as it is apparent that a 

remedy is available there.” Id. 

¶66 Similarly, in Treadaway v. Academy of Motion Picture 

Arts & Sciences, the Ninth Circuit, following Lapin, held that a 

district court could “refuse entirely to entertain [an] action 

if relief in a more appropriate forum—the rendering court—were 

available.” 783 F.2d 1418, 1421 (9th Cir. 1986) (footnote 

omitted). In that case, the plaintiff brought an independent 

action under Rule 60(b) in a district court challenging a 

bankruptcy court’s sale of certain films, photographs, and 

scripts. Id. at 1419-20. In affirming the district court’s 

refusal to consider the action, the Ninth Circuit confirmed that 

Lapin “was germane to independent attacks on all types of final 

judgments.” Id. at 1422. The court emphasized that “[w]hen a 

court entertains an independent action for relief from the final 

order of another court, it interferes with and usurps the power 

of the rendering court just as much as it would if it were 

reviewing that court’s equitable decree.” Id.

¶67 Because “discretion requires a [federal] district 

court to decline to hear a claim seeking relief from a judgment 

entered by a coordinate court, at least when it is apparent that 

the parties can seek redress in the issuing court,” Feller v. 

Brock, 802 F.2d 722, 728 (4th Cir. 1986), this Court should 

45
ordinarily decline to entertain an independent action 

challenging the validity of a federal decree. Such comity to 

the federal courts is particularly appropriate here. 

¶68 The issuing federal court – the United States District 

Court for the District of Arizona – expressly retained 

jurisdiction over the interpretation and enforcement of the 

Decree in 1935. That court continues to actively “review the 

actions of the Water Commissioner and to enforce the Decree.” 

United States v. Gila Valley Irrigation Dist. (“GVID III”), 961 

F.2d 1432, 1434 (9th Cir. 1992). The Tribe is a party to the 

federal litigation, having been granted permission to intervene 

in 1990. 

¶69 In its motion to intervene, the Tribe made clear that 

none of the allegations in its complaint in intervention sought 

“to vacate the Decree, or re-litigate issues.” Thus, in federal 

court, the Tribe has declared that it “does not seek to litigate 

rights to additional Gila River water in this matter, and [that] 

no allegations have been made in the proposed Complaint in 

Intervention regarding Winters water rights.” 

¶70 The limited nature of the Tribe’s intervention in the 

federal litigation does not, of course, establish its 

acquiescence in the Decree’s validity. It is clear, however, 

that the Tribe has consciously declined to adjudicate its 

“inadequate representation” claim in the forum responsible for 

46
issuing, interpreting, and enforcing the Decree. Notions of 

comity would be seriously undermined if we were to permit the 

Tribe to assert the very arguments in this Court that it has 

explicitly pretermitted in the federal court. 

¶71 The Tribe presumably moved to intervene in the federal 

litigation only for limited purposes because the district court 

had already intimated its view of a tribe’s ability to challenge 

both the validity of the Decree and the adequacy of the United 

States’ representation in the Globe Equity litigation. In 1983, 

GRIC “successfully moved to intervene as a plaintiff” in the 

federal litigation interpreting the Decree. GVID III, 961 F.2d 

at 1434. In granting GRIC’s motion, however, the district court 

prohibited GRIC from intervening “for the purpose of vacating 

the Decree or relitigating the issues resolved by the Decree.” 

The court noted that GRIC’s motion to intervene was filed fortyseven years after the entry of the Decree: 

To the extent GRIC seeks to vacate the Decree or to 

relitigate the issues the Decree resolves, it is hard 

to imagine a more untimely motion. The prejudice to 

the parties that is posed by GRIC’s avowed intent at 

this late date to dismantle the Decree is manifest. 

Water is lifeblood to the land affected by the Decree 

and the Decree apportions much of the available water. 

To permit an attack now on the Decree would cast the 

apportionment of Gila River water into a legal limbo, 

perhaps of many years duration, that would be 

detrimental to the interests of all the parties to the 

Decree. 

In addition, the district court expressly refused to consider 

47
GRIC’s argument that the United States’ representation of GRIC 

in the Globe Equity litigation had been inadequate, stating that 

it was “too late in the day for GRIC now to complain of its 

representation back in 1935.” GRIC’s intervention was thus made 

“subject to the condition that any complaint that GRIC files in 

the action must seek only to enforce the Decree and not to 

vacate the Decree or to relitigate issues already determined by 

the Decree.” 

¶72 The Tribe argues that the district court’s 1983 ruling 

with respect to GRIC’s intervention establishes that the Tribe 

cannot obtain relief in the court that issued the Decree, and 

therefore the Tribe should be allowed to pursue such relief 

here. But we take precisely the opposite message from the 1983 

ruling. Our task, after all, is to accord the Decree the same 

preclusive effect as would the issuing federal court. The 1983 

ruling tells us that the issuing court would not entertain an 

attack on the Decree, despite its facial power under Rule 60(b) 

to do so, because of untimeliness. Comity requires that we 

respect that determination; a contrary determination would 

reward a party who had waited too long to attack a judgment in 

federal court by providing a state forum. 

¶73 Had the Tribe believed that the district court erred 

in refusing to allow GRIC to intervene to attack the Decree, it 

could have sought to attack the Decree in its 1990 motion to 

48
intervene and then sought federal appellate review from any 

denial thereof. Had it done so, the federal courts could have 

conclusively addressed the issue. If we were today to consider 

the Tribe’s privity arguments, we would be in effect rewarding 

its strategic choice to withhold making those arguments in the 

court that issued the Decree in order to seek a more favorable 

forum here. The doctrine of comity requires a different 

result.21 We therefore decline to consider the Tribe’s attack on 

the Decree on the basis of absence of privity.22

V. 

¶74 Phelps Dodge, SRP, and Safford, none of whom were 

parties to the 1935 Decree (the “Nonparties”), argue that they 

should nonetheless be able to assert the preclusive effect of 

the Decree against the Tribe and the United States. Ordinarily 

 

21 We express no opinion as to what other remedies, if any, 

might be available to the Tribe for the Government’s allegedly 

inadequate representation. See Arizona v. California, 460 U.S. 

at 628 n.20 (noting that “in an appropriate case the Tribes’ 

remedy for inadequate representation by the government may lie 

in the Court of Claims”).

22 Arizona law requires that “when rights to the use of water 

or dates of appropriation have previously been determined in a 

prior decree of a court, the court shall accept the 

determination of such rights and dates of appropriation as found 

in the prior decree . . . .” A.R.S. § 45-257(B)(1) (emphasis 

added). Given our conclusion as a matter of federal law that 

the doctrine of comity prevents us from considering the Tribe’s 

argument that the Decree should not be enforceable against it 

because of the absence of privity, we need not consider today 

whether § 45-257(B)(1) also requires the same result as a matter 

of state law. 

49
the application of claim preclusion requires “mutuality” – both 

the party asserting the preclusive effect of a prior judgment 

and the party against whom preclusion is asserted must have been 

parties in the prior litigation. Nevada, 463 U.S. at 143. In 

certain circumstances, however, “exceptions to the res judicata

mutuality requirement have been found necessary . . . .” Id. 

The Supreme Court established such an exception in Nevada, 

holding that the Orr Ditch litigation was “a comprehensive 

adjudication of water rights intended to settle once and for all 

the question of how much of the Truckee River each of the 

litigants was entitled to.” Id. Because of the scope of the 

litigation, “[n]onparties [including] subsequent appropriators 

. . . have relied just as much on the Orr Ditch decree in 

participating in the development of western Nevada as have the 

parties to that case.” Id. at 144. Under those circumstances, 

the Court recognized a limited exception to the requirement of 

mutuality for claim preclusion, enabling those later 

appropriators to assert the preclusive effect of the decree 

against parties to the decree. 

¶75 In this case, the Nonparties argue that the Globe 

Equity litigation was sufficiently comprehensive to qualify for 

the Nevada mutuality exception; they also claim that they have 

relied on the Decree in the same manner as did the later 

appropriators in Nevada and should be able to use the Decree’s 

50
preclusive effect against parties to the Decree.23 In 

opposition, the Tribe and the United States argue that because 

the United States “expressly limited the Globe Equity 

proceedings to a defined segment of the Gila River exclusive of 

tributaries,” the Globe Equity litigation was not sufficiently 

“comprehensive” to qualify for the mutuality exception outlined 

in Nevada.24 In addition, the United States argues that because 

the Decree grants “compromise” rights in addition to 

establishing priorities under the doctrine of prior 

appropriation, subsequent appropriators would not be justified 

in relying on the Decree when appropriating water, and are 

therefore not entitled to assert the preclusive effect of the 

Decree. 

¶76 We have concluded above that the Decree was intended 

to resolve all claims to the Gila River mainstem. The United 

States included as defendants in the Globe Equity litigation all 

those with claims to the mainstem of the Gila River, and the 

Decree includes all water rights theories that the parties could 

have asserted. Thus, as to the mainstem of the Gila River, the 

 

23 As parties to the Decree, or successors in interest to 

parties to the Decree, ASARCO, GVID, FID, and SCIDD are entitled 

to assert the preclusive effect of the Decree and need not rely 

on the Nevada mutuality exception to claim preclusion. 

24 GRIC joins the Tribe and the United States in this 

argument, but focuses its brief on refuting the ability of 

Phelps Dodge in particular to assert the preclusive effects of 

the Decree. 

51
Decree is comprehensive. In addition, given the long history of 

the Decree, it is clear that those not party to the Decree have 

in fact relied upon it in the same manner as the later 

appropriators in Nevada. With respect to the Gila River 

mainstem, the Nevada exception to mutuality applies and those 

who were not party to the Decree are entitled to assert its 

preclusive effects against parties to the Decree and their 

successors. 

¶77 None of the Nonparties, however, seek to assert the 

preclusive effect of the Decree as to the Gila River mainstem. 

Rather, the Nonparties claim that under the Nevada mutuality 

exception they are entitled to assert the preclusive effect of 

the Decree as to waters of the Gila River tributaries. Because 

we have determined that the Decree itself precludes only 

additional claims to the mainstem, any assertion of preclusive 

effect by the Nonparties with respect to waters of the 

tributaries fails. 

VI. 

¶78 The Gila River general stream adjudication consists of 

a series of cases organized by watershed and by petitioner. The 

case we today consider, denominated W1-206, involves claims by 

the Apache Tribe and the United States on the Tribe’s behalf. 

Case W1-203 involves claims by GRIC and the United States on 

GRIC’s behalf. 

52
¶79 Before issuing its order in this case, the superior 

court considered similar summary judgment motions in W1-203. On

March 7, 2002, the superior court issued an order in W1-203, 

granting summary judgment to those parties who had filed motions 

arguing that the Decree precluded GRIC or the United States on 

GRIC’s behalf from asserting additional claims for water in the 

Gila River. The court concluded that “neither GRIC nor the 

United States on behalf of GRIC shall be entitled to claim water 

rights relating to the mainstem of the Gila River . . . except 

to the extent such rights were granted to them by the Globe 

Equity Decree.” 

¶80 When it issued its May 17, 2002 order in case W1-206, 

the superior court stated that it “ha[d] considered all filed 

memoranda and arguments of counsel and ha[d] otherwise become 

fully advised as to the issues presented.” The court then 

[g]rant[ed] the motions for summary judgment filed by 

GRIC, SCAT, Safford, GVID and FID jointly, SCIDD, 

Phelps Dodge, and ASARCO to the extent that these 

motions seek a determination that preclusive effect of 

the Globe Equity Decree is applicable to the parties 

consistent with the findings and conclusions set forth 

in this court’s Amended Order . . . that was entered 

in contested case No. W1-203. 

¶81 The Apache Tribe argues that the superior court 

“committed clear error by adopting the findings and conclusions 

in the Amended Order in W1-203 for GRIC as the sole basis for 

granting summary judgment against the Tribe in W1-206.” 

53
According to the Tribe, a determination of the preclusiveness of 

the Decree required “separate examination of the unique factual 

history involving these two very different Indian Tribes . . . 

and . . . separate consideration of the different legal 

arguments made by the Tribe and GRIC on summary judgment 

. . . .” 

¶82 We have today determined the preclusive effects of the 

Decree as a matter of law based on our interpretation of the 

Decree and the filings in the Globe Equity litigation leading to 

the Decree. This legal determination of the Decree’s preclusive 

effects makes any factual differences between cases W1-203 and 

W1-206 irrelevant. Because our opinion does not rely upon any 

factual determinations, but rather only on the record in the 

Globe Equity litigation, the Tribe’s arguments about the form of

the order below do not affect our conclusions.25

VII. 

¶83 In summary, for the reasons stated above, we hold that 

the Globe Equity Decree precludes the Apache Tribe and the 

United States on the Tribe’s behalf from asserting claims to 

 

25 One of the issues on which we granted review was whether 

the superior court erred in failing to determine that the Decree 

or the Landowners’ Agreements of 1924 specifically preclude GRIC 

and the United States on behalf of GRIC from claiming any rights 

to the San Carlos River in the Gila River general stream 

adjudication. See supra note 5. Because this issue would be 

more appropriately addressed in any review of the summary 

judgment order in W1-203 by GRIC, we vacate our order granting 

review of this issue as improvidently granted. 

54
water from the mainstem of the Gila River beyond those rights 

granted in the Decree, but that it does not preclude claims to 

the tributaries of the Gila River. (Tribe’s issue 1.) This 

holding also addresses the single issue raised by Phelps Dodge 

in its cross-appeal. We hold that the superior court’s 

reference in case W1-206 to its order in W1-203 was not 

reversible error. (Tribe’s issue 2.) We decline on grounds of 

comity to address the Tribe’s argument that the Decree is not 

entitled to preclusive effect because of an absence of privity. 

(Tribe’s issue 3.) We hold that the Government was vested with 

the authority to represent the Tribe in the Globe Equity 

litigation and to litigate the extent of the Tribe’s water 

rights. (Tribe’s issue 4.) We vacate our order granting 

interlocutory review of the effect of the Landowners’ Agreements 

on any claims by GRIC to the San Carlos River. (Tribe’s issue 

5.) We hold that the Nevada exception allows non-parties to the 

Decree to assert its preclusive effect, but only as to waters in 

the Gila River mainstem. (Tribe’s issue 6.) 

¶84 The May 17, 2002 order of the superior court is 

therefore affirmed to the extent that it holds that the Decree 

has preclusive effect with respect to claims by the Tribe and 

the United States to waters in the Gila River mainstem. The 

order is also affirmed to the extent that it concludes that the 

Decree has no preclusive effect with respect to the tributaries 

55
of the Gila River. This case is remanded to the superior court 

for further proceedings consistent with this opinion. 

 ____ 

 Andrew D. Hurwitz, Justice 

CONCURRING: 

 ____

Ruth V. McGregor, Chief Justice 

 _________

Rebecca White Berch, Vice Chief Justice 

 ____

Michael D. Ryan, Justice 

 ____

A. John Pelander, Judge∗

 

∗ Pursuant to Article 6, Section 3 of the Arizona 

Constitution, the Honorable A. John Pelander, Chief Judge of the

Arizona Court of Appeals, Division Two, was designated to sit in 

this matter. 

56