ARIZONA STATE SENATE
Phoenix, Arizona
nonnavigable streams;
disclaimer of title
(NOW: stream bed ownership;
navigability)
Repeals the unconstitutional and invalid provisions of the state navigable streams adjudication process and modifies the process for determining the navigability of the watercourses in the state at the time of statehood for the purpose of determining the ownership of the streambeds underlying these watercourses.
Under the provisions of the Equal Footing Doctrine, all states admitted to the Union after the original 13 colonies are to be admitted on an equal basis with the original 13 states. One of the rights held by the original 13 states was the right of sovereignty over lands lying beneath navigable watercourses in that state under the public trust doctrine. Under this right, the state of Arizona was allowed to claim the lands beneath all navigable watercourses in the state at the time of statehood for the benefit of the public trust. The state never asserted this right, with the exception of the Colorado River, until 1985.
In 1985 due to environmental concerns, the state Attorney General’s office asserted the state’s claim to the Verde River under the Equal Footing Doctrine. This action resulted in numerous titles to property in and along Arizona watercourses to become clouded. In 1987, the Legislature enacted legislation that disclaimed the state’s interest in all watercourses in the state except for the Gila, the Verde and the Salt Rivers. Property owners along these three rivers could obtain clear title to their property by applying for a quitclaim deed and paying $25 per acre to the state. This legislation was challenged by the Arizona Center for Law in the Public Interest (ACLPI) for violating Arizona’s constitutional gift clause and not recognizing the state’s responsibility to protect the public trust. The court of appeals ruled in favor of the ACLPI and declared the law unconstitutional (ACLPI v. Hassell).
As a result of the court ruling, the
Legislature established the Arizona Navigable Stream Adjudication Commission
(ANSAC) in 1992 to conduct, with the assistance of the State Land Department
(Department), a fact-finding process in order to determine the navigability of
watercourses in Arizona at the time of statehood (1912). During the initial stages of ANSAC’s work,
some issues and potential problems arose and were subsequently addressed in
legislation in 1994. Among other
changes, the legislation made ANSAC a separate agency independent of the
Department, created more restrictive presumptive criteria for determining
navigability and required the findings of ANSAC to be ratified by the
Legislature and signed by the Governor.
The first legislative ratification of ANSAC’s findings occurred in 1998 with the passage of S.B. 1126 (Laws 1998, Chapter 43). The passage of this bill prompted another lawsuit (Defenders of Wildlife v. Hull) alleging that the bill again violated the constitutional gift clause and the public trust doctrine by setting up criteria predisposed to a finding of nonnavigability. After the original trial court granted summary judgement in favor of the defendants, the case was appealed to the state Court of Appeals. On February 13, 2001, the Court of Appeals reversed the judgment, stating that the statutory criteria for navigability are preempted by federal law and therefore invalid, and remanded the case to the trial court for entry of judgment in favor of Defenders of Wildlife.
The strike-everything amendment to S.B. 1275 repeals the provisions of law determined by the Court of Appeals to be invalid or unconstitutional and restructures the process of determining navigability or nonnavigability to address other concerns raised in the litigation.
The fiscal impact of the strike everything amendment to S.B. 1275 to the state general fund is unknown.
1. Eliminates the presumptive standards to be used by ANSAC in determining the navigability or nonnavigability of the watercourses in the state.
2. Specifies that if the preponderance of the evidence gathered by and presented to ANSAC establishes that a watercourse was navigable at the time of statehood, ANSAC must issue its determination confirming the watercourse was navigable. If the preponderance of the evidence fails to establish that the watercourse was navigable, the Commission must issue its determination confirming that the watercourse was nonnavigable.
3. Specifies that ANSAC’s determinations of navigability or nonnavigability are not subject to legislative ratification and that such determinations may be appealed to superior court once ANSAC has made a final determination on a watercourse.
4. Specifies that for purposes of determining the bed of a watercourse, ordinary high watermark is to be used.
5. Defines “ordinary high watermark” to mean the line on the banks of a watercourse established by fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of the soil, destruction of terrestrial vegetation or the presence of liter and debris, or by other appropriate means that consider the characteristics of the surrounding areas. The ordinary high water mark does not mean the line reached by unusual floods.
6. Repeals all previous legislative findings of nonnavigability for watercourses for which an original finding of nonnavigability was made by ANSAC (Agua Fria River, Skunk Creek, New River, Hassayampa River, Salt River from the Granite Reef Dam to the confluence with the Gila River, Verde River, Bill Williams River, San Pedro River, Santa Cruz River, Puerco River, San Francisco River, Gila River, Big Sandy River, Burro Creek, Santa Maria River, Virgin River and all small and minor watercourses in La Paz, Mohave and Yuma Counties)
7. Eliminates the initial classification of watercourses by ANSAC.
8. Clarifies that the required public hearings to be held by ANSAC to receive additional evidence and testimony on the navigability or nonnavigability of each watercourse in the state must be held prior to making a final determination. If ANSAC finds a watercourse to be navigable, the Commission must schedule additional public hearings to identify and make a public report of any public trust values associated with the watercourse.
9. Requires ANSAC decisions on navigability or nonnavigability to be in writing and supported by sufficient documentation and detail to confirm the rationale and basis for the determination. These determinations are not subject to an administrative appeal.
10. Requires ANSAC to immediately notify the State Land Department of any watercourses determined to be navigable or nonnavigable.
11. Provides that if ANSAC determines a watercourse to be navigable, the State Land Department shall provide notice of that determination within 90 days of receiving such notice from ANSAC to all property owners who may be affected by the determination.
12. Allows property owners or lessees affected by a determination of navigability by ANSAC to petition the State Land Department in writing to disclaim, release, relinquish or dispose of the property from public land status as no longer materially useful for the purposes of the trust.
13. Requires the State Land Department to notify all parties who have requested notification of any determination of navigability or nonnavigability within 90 days of receiving notice of a final determination from ANSAC.
14. Requires all notices issued by the State Land Department regarding determinations by ANSAC, to include a statement of whether the Department intends to seek judicial review of the determination.
15. Allows the State Land Commissioner or any person aggrieved by a determination of navigability or nonnavigability by ANSAC to seek judicial review in superior court for the county in which all or part of the property directly affected by the determination is located. This review must be sought within 90 days after the State Land Department provides notice of the ANSAC determination.
16. Allows the court to order a joint hearing or trial of any matter in separate actions brought with respect to the same watercourse or adjacent or proximate watercourses. A court may consolidate all pending actions relating to the same watercourse or adjacent or proximate watercourses. The court may also issue orders to avoid unnecessary costs or delay, or to avoid inconsistent results.
17. Provides that once ANSAC has issued a determination of navigability or nonnavigability and no party has sought judicial review of that determination within 90 days, ANSAC shall cause a record of its determination to be recorded in the office of the county recorder in each county in which the subject watercourse is located.
18. Specifies that, subject to judicial review, an ANSAC determination of nonnavigability constitutes a disclaimer of the state’s right to or interest in the bed of the watercourse based on its navigability.
19. Changes the time at which a person or entity who has an ownership interest in lands affected by a determination of navigability may negotiate a boundary or exchange agreement with the State Land Commissioner. Parties may negotiate such agreements prior to a final determination of navigability or nonnavigability by ANSAC rather than prior to a judicial determination.
20. Prohibits the State Land Department from commencing an action to quiet title on lands until a final determination has been issued by ANSAC and that decision is not subject to further judicial review.
21. Specifies that before the State Land Department files any quiet title actions regarding public trust property beneath or adjacent to a navigable watercourse, the determination of the location of the boundaries of the streambed to which the state claim applies are to be based on the boundaries of the streambed on the date that ANSAC made its determination of navigability unless a preponderance of the evidence establishes a different location. (Current law requires “clear and convincing evidence” as the legal standard.)
22. Establishes that the venue for any action by the State Land Department to quiet title to land is proper only in the superior court for the county in which the affected lands are located. However, the superior court may grant or deny request for a change of venue pursuant to existing laws governing change of venue procedures.
23. Requires the State Land Department to join as parties in any action to quiet title to land, each property owner who may be affected by the state’s claim to ownership of the bed of the affected watercourse. This requirement does not constitute grounds for dismissal of the action if persons or entities not joined are not subject to the jurisdiction of the courts of this state.
Miscellaneous
24. Continues ANSAC for two more years, until June 30, 2004.
25. Authorizes legal counsel employed by ANSAC to advise and represent the Commission before other state agencies and in litigation concerning affairs of the Commission.
26. Provides an intent clause that states the intent of the Legislature to repeal the provisions of the navigable stream adjudication law that were held to be invalid and to allow the commission to use the large amount of evidence it has already collected and to receive additional evidence.
27. Makes technical and conforming changes.
28. Provides for a general effective date.
Amendments
Adopted by NRAE Committee
Adopted the strike everything amendment.
Amendments
Adopted by the House of Representatives
Makes a technical correction.
Senate Action House Action
NRAE 2/8/01 DPA 7-1 NRA 4/4/01 DPA 7-1-0-2
Re-referred to NRAE on 2/26/01 3rd Read 4/11/01 32-20-5
NRAE 3/8/01 DPA/SE 7-1
3rd Read 3/15/01 21-8-1
Final Read 4/17/01 20-9-1
Signed by the Governor 4/20/01
Chapter 166
Prepared by Senate Staff
April 30, 2001