McClellan v. Jantzen
In McClellan v. Jantzen, 26 Ariz. App. 223, 225, 547 P.2d 494, 496 (1976), the Court interpreted the Legislature's inclusion of "wildlife, including fish" and "recreation" into the statutory list of beneficial uses as providing for in situ appropriation in the statutory water scheme. 26 Ariz. App. at 225, 547 P.2d at 496.
The court found that, while diversion may have been necessary to effect a statutory beneficial use prior to the addition of wildlife and recreational use into accepted beneficial uses, it was not a necessity thereafter. Id.
The court in McClellan erroneously assumed that all water appropriation prior to the statutory amendments involved a diversion. 26 Ariz. App. at 225, 547 P.2d at 496.
The sole issue in McClellan was "whether the stocking of a lake with fish by the Arizona Game & Fish Department is an appropriation of the waters of that lake requiring a permit from the State Land Department." Id. at 224, 547 P.2d at 495.
The court ultimately held that merely stocking fish in the lake was not an appropriation requiring a permit. Id. at 226, 547 P.2d at 497.
However, in so holding the court also stated, "we therefore find that by these amendments the legislature intended to grant a vested right to the State of Arizona to subject unappropriated waters exclusively to the use of recreation and fishing." Id.