Arizona Center For Law In Public Interest v. Hassell, 1

CourtCourt of Appeals of Arizona
Citation837 P.2d 158,172 Ariz. 356
Docket NumberNo. 1,CA-CV,1
Parties, 23 Envtl. L. Rep. 20,348 ARIZONA CENTER FOR LAW IN the PUBLIC INTEREST, a nonprofit corporation; Defenders of Wildlife, a nonprofit corporation; Michael Gregory; Thomas Wright, and James Vaaler, Plaintiffs-Appellants, v. Milo J. HASSELL, in his capacity as State Land Commissioner; Arizona State Land Department, an agency of the State of Arizona, and State of Arizona, Defendants-Appellees, Calmat Co. of Arizona, an Arizona corporation; Tanner Land Company, Inc., an Arizona corporation; Thomas M. and Frances K. Valente, husband and wife; First American Title Insurance Company of Arizona, an Arizona corporation; Maricopa County, a political subdivision of Arizona; Salt River Project Agricultural Improvement District, a political subdivision of Arizona, Defendants Intervenors-Appellees. 89-134.
Decision Date10 September 1991

FIDEL, Presiding Judge.

In 1985, Arizona officials upset longstanding assumptions about title to riverbed lands by asserting that the state owned all lands in the beds of Arizona watercourses that were navigable when Arizona was admitted to the Union. The 38th Arizona Legislature responded by enacting 1987 Ariz.Sess.Laws, ch. 127 (H.B. 2017) (codified at Ariz.Rev.Stat.Ann. §§ 37-1101 to 37-1108, 12-510, and 12-529 (Supp.1990)), substantially relinquishing the state's interest in such lands. The validity of that statute is the subject of this appeal.

A. The Equal Footing Doctrine

The state's claims originate in a common-law doctrine, dating back at least as far as Magna Charta, vesting title in the sovereign to lands affected by the ebb and flow of tides. See Martin v. Waddell, 41 U.S. (16 Pet.) 367, 412-13, 10 L.Ed. 997 (1842). The sovereign did not hold these lands for private usage, but as a "high prerogative trust ..., a public trust for the benefit of the whole community." Id. at 413. In the American Revolution, "when the people ... took into their own hands the powers of sovereignty, the prerogatives and regalities which before belonged either to the crown or the Parliament, became immediately and rightfully vested in the state." Id. at 416.

Although watercourse sovereignty ran with the tidewaters in England, an island country, in America the doctrine was extended to navigable inland watercourses as well. See Barney v. Keokuk, 94 U.S. 324, 24 L.Ed. 224 (1877); Illinois Cent. R.R. v. Illinois, 146 U.S. 387, 434, 13 S.Ct. 110, 111, 36 L.Ed. 1018 (1892). Moreover, by the "equal footing" doctrine, announced in Pollard's Lessee v. Hagan, 44 U.S. (3 How.) 212, 11 L.Ed. 565 (1845), the Supreme Court attributed watercourse sovereignty to future, as well as then-existent, states. The Court reasoned that the United States government held lands under territorial navigable waters in trust for future states, which would accede to sovereignty on an "equal footing" with established states upon admission to the Union. Id. at 222-23, 229; accord Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981); Land Department v. O'Toole, 154 Ariz. 43, 44, 739 P.2d 1360, 1361 (App.1987).

The Supreme Court has grounded the states' watercourse sovereignty in the Constitution, observing that "[t]he shores of navigable waters, and the soils under them, were not granted by the Constitution to the United States, but were reserved to the states respectively." Pollard's Lessee, 44 U.S. (3 How.) at 230; see also Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363, 374, 97 S.Ct 582, 589, 50 L.Ed.2d 550 (1977) (states' "title to lands underlying navigable waters within [their] boundaries is conferred ... by the [United States] Constitution itself").

B. H.B. 2017

Thus, on February 14, 1912, at the instant it achieved the constitutional status of a state, Arizona acquired title to the lands below high-water mark in all navigable watercourses within its boundaries. Until 1985, however, the Colorado River was the only watercourse in which the state asserted an equal footing claim. See O'Toole, 154 Ariz. at 46, 739 P.2d at 1363.

This changed in 1985, when state officials began, in lawsuits and in public comments, to assert state equal footing rights. Id. at 44, 739 P.2d at 1361. Existing title assumptions were threatened by these developments, and in 1987 the Arizona Legislature responded by enacting H.B. 2017, relinquishing the state's claims in large degree. 1 In the opening section of that statute, the legislature stated its purpose at some length. Describing the state's claims as vague, uncertain in location, and likely to cause "economic displacement," H.B. 2017, § 1(A), the legislature continued:

The purpose of this act is to avoid a lengthy, difficult and expensive fact-finding effort and to resolve this state's claim by recognizing the titleholders' accrued equity in taxes, improvements and family and social ties and confirming titles of private parties and political subdivisions to lands in the beds of waters other than the Colorado river and to compensate this state for relinquishing the claim in those areas where the state's claim may be more viable. Monies received by this state as compensation will be used to acquire riparian lands for public benefit. This act also provides for public recreational use of surface water in navigable watercourses.

H.B. 2017 § 1(B).

Only certain parts of H.B. 2017 are challenged in this lawsuit. 2 One of these constitutes an uncompensated quitclaim of the state's equal footing interest in all watercourses other than the Colorado, Gila, Salt, and Verde Rivers and in all lands formerly within those rivers but outside their current beds. See Ariz.Rev.Stat.Ann. §§ 37-1102(A) and 37-1102(B).

Another challenged part establishes a quitclaim fee of $25 per acre, for which any record titleholder of lands in or near the beds of the Gila, Salt, or Verde Rivers can obtain a quitclaim deed from the state land commissioner for all of the state's equal footing interest in such lands. See § 37-1103. 3 Another challenged part provides that every state land patent issued after the effective date of H.B. 2017 will convey any state equal footing interest in the patented land. See § 37-1107. 4 Another subjects the state's equal footing claims to statutory and equitable time bars from which the state was formerly exempt. See §§ 12-510 and 12-529.

The legislature declared the provisions of H.B. 2017 severable and enacted it as an emergency measure, effective immediately upon signing. Ariz.Const. art. IV, pt. 1, § 1(3). The bill was signed into law by Governor Evan Mecham on April 21, 1987.

C. Trial Court Proceedings

Appellants Arizona Center for Law in the Public Interest, Michael Gregory, Thomas Wright, and James Vaaler commenced this lawsuit on July 28, 1987. 5 The complaint named State Land Commissioner Milo J. Hassell, the State Land Department, and the State of Arizona as defendants; several parties who claimed interests in riverbed lands intervened as additional defendants. 6

Appellants, representing Arizona taxpayers and recreational users of Arizona riverbeds, claimed that H.B. 2017 violated the gift clause of the Arizona Constitution, Ariz.Const. art. IX, § 7; the special law clause of the Arizona Constitution, Ariz.Const. art. IV, pt. 2, §§ 19(6), 19(13), and 19(18); and the state's sovereign duty to protect the public trust. Appellants sought a declaratory judgment invalidating certain portions of the act, a declaratory judgment invalidating quitclaim deeds already issued pursuant to the act, and an injunction against issuance of further quitclaim deeds. 7

These issues were submitted by cross-motions for summary judgment, and the trial court denied appellants' motion and granted summary judgment for the defendants and intervenor-defendants (collectively "appellees"). The trial court identified an issue of disputed fact--"whether the Salt, Gila and Verde Rivers were navigable on February 14, 1912"--but found no need to resolve that issue to decide the validity of H.B. 2017. Even if the rivers were navigable at statehood, the court reasoned, the state could legally relinquish its claims to the riverbeds for the purpose of "unclouding title."

The trial court awarded appellees their costs, denied their requests for attorneys' fees, and entered formal judgment in accordance with its rulings. During this appeal we accepted a brief amicus curiae...

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