ARIZONA STATE SENATE
Phoenix, Arizona
REVISED
nonnavigable streams;
disclaimer of title
Ratifies the nonnavigability, at the time of statehood, of the small and minor watercourses in Cochise, Pima, Santa Cruz and Pinal counties, and relinquishes any state claims to the beds of these rivers contingent upon the river’s navigability.
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, in order to limit the activities of a sand and gravel operation near Dead Horse Ranch State Park, the state Attorney General’s office asserted the state’s claim to the Verde River under the Equal Footing Doctrine. This action caused 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 quit-claim 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 and charged the Commission with conducting a fact-finding process in order to determine the navigability of watercourses in Arizona at the time of statehood (1912). Upon completing its research, ANSAC is required to make recommendations regarding the navigability or nonnavigability of watercourses in the state. The statutory process for determining the navigability or nonnavigability of a watercourse requires the Legislature to ratify ANSAC’s findings and waive the state’s rights to the streambeds’ underlying watercourses determined to have been nonnavigable at the time of statehood.
During 2000, ANSAC made findings of nonnavigability for all small and minor watercourses in Cochise, Pima, Santa Cruz and Pinal counties. S.B. 1275 ratifies these findings and relinquishes, waives and disclaims any state right, title or interest based on navigability of these watercourses.
1. Ratifies ANSAC’s findings of nonnavigability at the time of statehood for the small and minor watercourses in Cochise, Pima, Santa Cruz and Pinal counties and relinquishes the state’s rights to the streambeds of these watercourses based on navigability and the Equal Footing Doctrine.
2. Specifies that the state’s relinquishment does not affect any prior determination of nonnavigability for any of these watercourses in a public proceeding.
3. Requires the State Land Department to keep ANSAC’s reports, records and all evidence relating to the finding in the reports for the small and minor watercourses in Cochise, Pima, Santa Cruz and Pinal counties.
4. Requires copies of the state’s disclaimers to be recorded in each affected county.
5. Provides for a general effective date.
Amendments Adopted by Committee
Includes the finding of nonnavigability for the small and minor watercourses in Pinal County and relinquishes the state’s claims to the beds of these watercourses.
Senate Action
NRAE 2/8/01 DPA 7-1-0-0
Prepared by Senate Staff
February 12, 2001