Defenders of Wildlife v. Hull, 1 CA-CV 99-0624.

• Decision Date: 13 February 2001
• Docket Number: No. 1 CA-CV 99-0624.,1 CA-CV 99-0624.
• Citation: 18 P.3d 722,199 Ariz. 411
• Parties: DEFENDERS OF WILDLIFE, a nonprofit corporation; James A. Slingluff; Timothy J. Flood; and Joanne Finch, Plaintiffs-Appellants, and State of Arizona, Defendant-Appellant, v. Governor Jane Dee HULL, Defendant-Appellee, Phelps Dodge Corporation; Salt River Valley Water Users Association; Salt River Project Agricultural Improvement and Power District, Intervenors-Appellees.
• Court: Arizona Court of Appeals

18 P.3d 722

199 Ariz. 411

DEFENDERS OF WILDLIFE, a nonprofit corporation; James A. Slingluff; Timothy J. Flood; and Joanne Finch, Plaintiffs-Appellants, and State of Arizona, Defendant-Appellant, v. Governor Jane Dee HULL, Defendant-Appellee, Phelps Dodge Corporation; Salt River Valley Water Users Association; Salt River Project Agricultural Improvement and Power District, Intervenors-Appellees.

No. -0624.

Court of Appeals of Arizona, Division 1, Department D.

February 13, 2001.

Arizona Center For Law In The Public Interest, by Timothy M. Hogan, Tina A. Calos, Jennifer B. Anderson, Phoenix, Attorneys for Plaintiffs-Appellants.

Janet Napolitano, Attorney General, by Joseph P. Mikitish, Assistant Attorney General, Laurie A. Hachtel, Assistant Attorney General, Paula S. Bickett, Assistant Attorney General, Phoenix, Attorneys for Defendant-Appellant State of Arizona.

Gallagher & Kennedy, P.A., by John E. Lundin, Phoenix, Attorneys for Defendant-Appellee Governor Hull.

Ryley, Carlock & Applewhite, by L. William Staudenmaier, N. Warner Lee, and Dawn M. Meidinger, Cynthia M. Chandley, Phoenix, Attorneys for Intervenor-Appellee Phelps Dodge Corporation.

Salmon, Lewis & Weldon, P.L.C., by M. Byron Lewis, John B. Weldon, Jr., Mark A. McGinnis, Brenda W. Burman, Phoenix, Attorneys for Intervenors-Appellees Salt River.

H. Jay Platt, St. Johns, Attorney for Amicus Curiae Arizona Farm Bureau.

OPINION

PATTERSON, Judge.

¶ 1 Defenders of Wildlife (Wildlife) and the State of Arizona appeal from the trial court's grant of summary judgment in favor of Phelps Dodge Corporation, Salt River Valley Users Association, and Salt River Project Agricultural Improvement and Power District (Salt River), which upheld the validity and application of Senate Bill (S.B.) 1126. For the reasons that follow, we reverse the trial court's grant of summary judgment and remand for entry of summary judgment in favor of Wildlife and the state on their claim that S.B. 1126 is a violation of Arizona's gift clause and the public trust doctrine.

I. BACKGROUND AND FACTS

¶ 2 The headwaters of this meandering case have their origins in 1985, when certain Arizona officials began to assert the state's right of ownership over all bedlands under navigable watercourses. Although lying dormant for some 73 years,¹ the state's claims were an assertion of Arizona's rights under the common-law "equal footing" doctrine, which vests in the sovereign title to all lands affected by the ebb and flow of tides. See Martin v. Waddell, 41 U.S. (16 Pet.) 367, 410, 412-13, 10 L.Ed. 997 (1842)

. Arizona's rivers, as inland watercourses, are also covered by the doctrine. See Illinois Cent. R.R. Co. v. Illinois, 146 U.S. 387, 436-37, 13 S.Ct. 110, 36 L.Ed. 1018 (1892). Under the equal footing doctrine, on the day in which individual states enter the Union, title to the lands under territorial navigable watercourses is transferred from the federal government to the newly-established state government. See Land Dep't v. O'Toole, 154 Ariz. 43, 45, 739 P.2d 1360, 1362 (App.1987); see also Pollard's Lessee v. Hagan, 44 U.S. (3 How.) 212, 223, 11 L.Ed. 565 (1845). This common-law rule was subsequently written into the Submerged Lands Act of 1953. 43 U.S.C. § 1311(a) (1995). The transfer of land interests by means of the equal footing doctrine has been grounded in the Constitution by the United States Supreme Court, which recognized that the federal government held the lands in trust for the states. Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363, 374, 97 S.Ct. 582, 50 L.Ed.2d 550 (1977); see also Pollard's Lessee,

44 U.S. (3 How.) at 223, 229-30. The claims of Arizona's officials, however, immediately clouded the title held by political subdivisions, private individuals, and corporations that had for years exercised control over, made improvements to, and paid taxes upon these affected stretches of land.

¶ 3 In 1987, the Arizona Legislature passed House Bill (H.B.) 2017, which attempted to relinquish most of the state's interest in Arizona's watercourse bedlands. Parts of H.B.2017 were determined to be invalid by this court under both the Arizona Constitution's gift clause and the public trust doctrine. Ariz. Ctr. For Law In The Pub. Interest v. Hassell, 172 Ariz. 356, 371, 837 P.2d 158, 173 (App.1991)

. Specifically, we held in Hassell that, because the state has fiduciary obligations to maintain the public trust, the state must "provide a mechanism for particularized assessment of ... the validity of the equal footing claims it relinquishes" before disclaiming the state's interest in any of Arizona's watercourse bedlands. Id.

¶ 4 Although the state had yet to determine the navigability of any watercourse whose underlying bed was within the scope of H.B.2017, in Hassell we found evidence in the record to support navigability. Id. at 363, 837 P.2d at 165. Therefore, we concluded that Arizona had a substantial enough interest, "though still uncertain in value and extent," to warrant gift clause and public trust analysis. Id. at 364, 837 P.2d at 166.

¶ 5 In response to Hassell, the Arizona Legislature passed legislation in 1992 (the 1992 Act) to once again address the state's claims to the land under Arizona's watercourses. See Ariz.Rev.Stat.Ann. (A.R.S.) §§ 37-1121 to 1131 (1993).² As part of a comprehensive scheme to investigate and adjudicate the state's claims, the 1992 Act established the Arizona Navigable Stream Adjudication Commission (Commission). A.R.S. § 37-1121 (1993). The Commission would compile information gathered through the investigative efforts of the State Land Department, as well as hold its own public hearings. A.R.S. §§ 37-1123, -1124, -1126 (1993). The Commission would then issue a "final administrative determination" regarding navigability. A.R.S. §§ 37-1128(A) (1993). This administrative adjudication was, according to statute, subject to judicial review. A.R.S. § 37-1129 (1993).

¶ 6 In 1994, the legislature made significant changes to the statutes governing the parameters and procedures of the Commission (the 1994 Act). 1994 Ariz. Sess. Laws, ch. 277, §§ 1-14, eff. April 25, 1994. After these changes, the Commission ceased to function as an adjudicatory body and instead operated, in both theory and practice, as merely a fact-finding, legislative advisory committee. In addition, when collecting information regarding navigability, the Commission was subject to more restrictive, specifically-enumerated evidentiary requirements. See, e.g., A.R.S. § 37-1128 (Supp.1999).

¶ 7 Based on the Commission's reports, legislation disclaiming the state's "right, title or interest based on navigability and the equal footing doctrine" to the bedlands of the Agua Fria, New, Hassayampa, and lower Salt Rivers, as well as Skunk Creek, was drafted as S.B. 1126. After having the Verde River added as a floor amendment, S.B. 1126 was passed by the legislature and signed into law by Governor Hull on May 4, 1998. Ariz. Sess. Laws 1998, Ch. 43, § 2.³

¶ 8 On September 25, 1998, Wildlife filed a complaint against Governor Hull and the State of Arizona, claiming S.B. 1126 violated both the public trust doctrine and the gift clause of the Arizona Constitution. The state, represented by the attorney general, admitted the allegations of the complaint and added a claim that S.B. 1126 was an unconstitutional violation of the separation of powers doctrine. Governor Hull, however, denied Wildlife's allegations but joined the state in its separation of powers argument. Phelps Dodge and Salt River then were allowed to intervene to argue for the constitutionality of the legislation. On cross-motions for summary judgment, the trial court found in favor of Phelps Dodge and Salt River on the separation of powers issues and in favor of Phelps Dodge, Salt River, and Governor Hull (Appellees) on the public trust and gift clause claims. Wildlife and the state (Appellants) timely appealed and we have jurisdiction pursuant to A.R.S. section 12-2101(B) (1994).

II. DISCUSSION

A. STANDARD OF REVIEW

¶ 9 Because the court's ruling below involved pure questions of law, our review is de novo. See San Carlos Apache Tribe v. Superior Court, 193 Ariz. 195, 203,

¶ 9, 972 P.2d 179, 187 (1999).

B. APPELLANTS' CLAIMS

¶ 10 Appellants argue that the 1994 Act's standards for determining navigability are so contrary to the federal test of navigability that the statutes are "deliberately designed to defeat trust claims" by setting up a framework of tightly-constructed presumptions that make the legislature's non-navigability findings virtually inevitable. Such a disposition of state trust land, according to Appellants, means that S.B. 1126 is a violation of both the gift clause and the public trust doctrine. In addition, the state individually asserts that S.B. 1126 is an unconstitutional violation of the separation of powers doctrine. In her answering brief, Governor Hull joins Phelps Dodge and Salt River's arguments supporting the constitutionality of S.B. 1126 but, in contrast, adopts the state's separation of powers argument.

¶ 11 During this appeal we accepted briefs amicus curiae filed by the Attorneys General of California, Alaska, and Utah supporting Appellants' position and the Arizona Farm Bureau, which argued that Arizona's prior appropriation system of water usage is irreconcilable with the state's equal footing claims based on navigability.⁴

C. GIFT CLAUSE AND PUBLIC TRUST DOCTRINE IN ARIZONA

1. State's Public Trust Obligations and Particularized Assessment Requirements of Hassell

¶ 12 Lands located under Arizona's navigable waterways are held by the state in trust for the people of Arizona. Hassell, 172 Ariz. at 364-65,837 P.2d at 166-67. Although the extent of the public trust to be found in the bedlands of Arizona's waterways is presently undefined, the transfer of the as-yet-unknown quantity of land that took place on February 14, 1912, created specific duties...