State Trust Land Department v. ANSAC
In Spring 2011, the Center won a major victory for the protection of Arizona's rivers and streams, and by extension, for all of us who want to bring back our quickly disappearing waterways and the rich, lush, riparian corridors they sustain.
On April 27, the Arizona Court of Appeals ruled in the Center's favor when it held that the Arizona Navigable Streambed Adjudication Commission ("ANSAC") used the wrong legal standard when it determined that the Lower Salt River was not navigable at the time Arizona became a state.
This is an important standard because whether or not a river was "navigable" at the time of statehood determines who owns the riverbed.
If the river was "navigable" - that is, susceptible to use for trade and travel in its "ordinary and natural condition" - then the river and the land beneath it belong to the state to be held in trust for all of the citizens of Arizona.
With respect to the Lower Salt River, both the State Land Department and the Center had urged ANSAC to find that the river was "navigable" at statehood. ANSAC, however, decided otherwise. On appeal, the Center argued that ANSAC should not have based its decision on the river's actual condition at statehood, but instead, on what its natural condition would have been absent man-made diversions of water (i.e., dams, diversions and pumping). This is the same standard used in federal law to determine navigability.
The Court of Appeals agreed with the Center but declined to hold outright that the river was navigable, and instead remanded the case to ANSAC to reconsider its decision using the correct standard. The Court did, however, enumerate what should be the test for the river's "natural" condition: "The obvious answer is that it was in its natural condition before the Hohokam people arrived many centuries ago and developed canals and other diversions." Because there is little evidence from that period, the Court said the next best period to satisfy the test would be the 1800s, before farming began and after the Hohokam diversions disappeared and the river returned to its natural state.
This case has a long history, beginning in 1987 when the Center first argued that the state had to safeguard its trust interest in rivers and streams.
The problem then, as now, is that a number of corporate interests like sand and gravel companies have been tearing up property in and along rivers and streams throughout the state even though they have no claim to the title of those lands.
The Arizona legislature, anxious to bestow title to these lands on their corporate friends, enacted legislation disclaiming any interest on the part of the state in lands that were already occupied. The legislation then unabashedly provided for the sale of all remaining river and stream lands for a pittance at $25 per acre.
The Center sued the state for this unlawful giveaway of state trust lands, asserting that Arizona acquired title to all property underlying rivers and streams that were "navigable" at the time Arizona became a state in 1912. Because Arizona had a trust interest in the rivers and streams, the Center argued that the legislature's giveaway was a violation of the constitutional ban on gifts of public property to private interests.
In 1991, the Arizona Court of Appeals issued its first decision in the Center's favor by invalidating the 1987 legislation. This decision confirmed that Arizona held title to all "navigable" rivers and streams in public trust for its citizens' enjoyment and recreation. Any disposition of those lands could only be made if consistent with trust purposes.
Upset by the Court of Appeals decision, the legislature enacted a new law in 1992 establishing ANSAC. Former Governor Fife Symington made the initial appointments to ANSAC.
Indeed, it was both Symington's and the legislature's fondest hope that ANSAC would determine that all of Arizona's rivers and streams were non-navigable and therefore capable of being given away to private interests.
ANSAC, however, actually decided to follow the law and in 1993, made preliminary findings that the Salt River was "navigable" at the time of statehood and therefore subject to the public trust. That's not exactly what the legislature had in mind so within a matter of months, the legislature passed a new law demoting ANSAC to an advisory body and placing the legislature itself in charge of all navigability determinations. This law also established burdens of proof, exclusions of evidence, and presumptions against navigability that made it virtually impossible for ANSAC to recommend that any river or stream was "navigable."
In response, the Center sued the state again in 1998, and once again, the Court of Appeals held in the Center's favor. The court stated that the legislature's narrow definition of "navigability" was a "de facto" giveaway of the riverbeds and thus, a violation of both the Arizona Constitution's gift clause and the public trust doctrine. As a result of that decision, the legislature passed a new law reconstituting ANSAC and giving it final authority to determine navigability (subject to judicial review) and adopted the federal definition of navigability - whether the river was used or was susceptible to being used, in its ordinary and natural condition, as a highway for commerce, over which trade and travel were or could have been conducted in the customary modes of trade and travel on water.
In late 2001, ANSAC reconvened and began re-holding navigability hearings for all of Arizona's waterways. ANSAC completed its hearing in January 2006 and found all of Arizona's rivers non-navigable despite historical and modern accounts of boating on several major rivers. The Center filed this suit shortly thereafter to appeal ANSAC's determination of the Lower Salt River as non-navigable. The ruling in this case, however, will also impact other watercourse adjudications involving the Verde, Gila, Santa Cruz, San Pedro, and Upper Salt rivers, which have been on hold pending the resolution of this case.
ANSAC, Salt River Project (SRP) and others appealed the April 2010 ruling but on February 8, 2011, the Arizona Supreme Court denied review of their appeal. On June 13, the U.S. Supreme Court denied SRP's motion to file a late appeal in the case. This means that Arizona's rivers and streams now have a real chance for protection and rehabilitation.
The next step will be for ANSAC to make a new decision regarding the navigability (and therefore, protection) of Arizona's rivers and streams using the correct definition of "navigability." The Center will closely monitor ANSAC's every move to ensure that it follows the law and will stand ready to intervene again if necessary.