STATE EX REL. WINKLEMAN v. NAV. STREAM ADJ.

• Decision Date: 27 April 2010
• Docket Number: No. 1 CA-CV 07-0704.,1 CA-CV 07-0704.
• Citation: 229 P.3d 242
• Parties: STATE of Arizona, acting by and through Mark WINKLEMAN, State Land Commissioner, and the Arizona State Land Department; and Defenders of Wildlife, Donald Steuter, Jerry Van Gasse, Jim Vaaler, Plaintiffs/Appellants, v. ARIZONA NAVIGABLE STREAM ADJUDICATION COMMISSION; Salt River Project Agricultural Improvement and Power District; Salt River Valley Water Users' Association; Arizona State University; City of Tempe; City of Phoenix; City of Mesa; Freeport-McMoran Corporation; Maricopa County; Cemex Cement, Inc.; Gila River Indian Community; Home Builders Association of Central Arizona; Maricopa County Flood Control District, Defendants/Appellees.
• Court: Arizona Court of Appeals

229 P.3d 242

STATE of Arizona, acting by and through Mark WINKLEMAN, State Land Commissioner, and the Arizona State Land Department; and Defenders of Wildlife, Donald Steuter, Jerry Van Gasse, Jim Vaaler, Plaintiffs/Appellants, v. ARIZONA NAVIGABLE STREAM ADJUDICATION COMMISSION; Salt River Project Agricultural Improvement and Power District; Salt River Valley Water Users' Association; Arizona State University; City of Tempe; City of Phoenix; City of Mesa; Freeport-McMoran Corporation; Maricopa County; Cemex Cement, Inc.; Gila River Indian Community; Home Builders Association of Central Arizona; Maricopa County Flood Control District, Defendants/Appellees.

No. 1 CA-CV 07-0704.

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

April 27, 2010.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Terry Goddard, Attorney General By Joy L. Hernbrode, Assistant Attorney General, Laurie A. Hachtel, Assistant Attorney General, Phoenix, Attorneys for Plaintiff/Appellant State of Arizona.

Arizona Center for Law in the Public Interest By Joy E. Herr-Cardillo, Timothy M. Hogan, Tucson, Attorneys for Plaintiffs/Appellants Defenders of Wildlife, Donald Steuter, Jerry Van Gasse, and Jim Vaaler.

Jennings, Haug & Cunningham, L.L.P. By Curtis A. Jennings, Phoenix, Attorneys for Defendant/Appellee Arizona Navigable Stream Adjudication Commission.

Salmon, Lewis & Weldon, P.L.C. By John B. Weldon, Jr., Mark A. McGinnis, Rebecca C. Goldberg, Phoenix, Attorneys for Defendants/Appellees Salt River Project Agricultural Improvement and Power District and Salt River Valley Water Users' Association.

Moyes Sellers & Sims, Ltd. By Steve L. Wene, Phoenix, Attorneys for Defendant/Appellee Arizona Board of Regents acting on behalf of Arizona State University.

Tempe City Attorney's Office By Charlotte Benson, Tempe, Attorneys for Defendant/Appellee City of Tempe.

Engelman Berger, P.C. By William H. Anger, Phoenix, Attorneys for Defendant/Appellee City of Mesa.

Ryley, Carlock & Applewhite, P.A. By Cynthia M. Chandley, L. William Staudenmaier, III, Michael T. Kafka, Phoenix, Attorneys for Defendant/Appellee Freport-McMoRan Corporation.

Lewis and Roca, L.L.P. By Carla Consoli, Phoenix, Attorneys for Defendant/Appellee Cemex Cement, Inc.

Jennifer K. Giff, General Counsel, Gila River Indian Community By John T. Hestand, Timothy L. Pierson, Ruth E. Koester, Ann Marie Chischilly, Sacaton, Attorneys for Defendant/Appellee Gila River Indian Community.

Mariscal, Weeks, McIntyre & Friedlander, P.A. By Gary L. Birnbaum, James T. Braselton, Barry R. Sanders, Phoenix, Attorneys

for Amicus Curiae Land Title Association of Arizona.

OPINION

WINTHROP, Presiding Judge.

¶ 1 This appeal involves the long-standing battle to determine who owns the beds of rivers ("bedlands") within the State of Arizona. At specific issue are the bedlands of the Lower Salt River (a/k/a "the River"), which runs from Granite Reef Dam above Phoenix through the highly populated Salt River Valley to the confluence with the Gila River. The crucial question to be resolved is whether the River was navigable in its ordinary and natural condition.¹ If it was navigable, title to the bedlands passed to the State from the federal government at statehood on February 14, 1912, and the State retains title to those bedlands. If the River was not navigable, the neighboring riparian owners hold title. The Arizona Navigable Stream Adjudication Commission ("ANSAC" or "the Commission"), which is charged by statute with making the navigability determination, see A.R.S. §§ 37-1121 (Supp.2009), -1123(A) (2003), -1128(A) (Supp.2009), determined that the River was not navigable. Plaintiffs — the State of Arizona, Defenders of Wildlife, and others (collectively "Appellants") — appeal from the superior court's judgment affirming ANSAC's determination. Because we agree with Appellants that ANSAC misapplied a pertinent test for determining navigability, and the superior court erred in affirming ANSAC's administrative decision, we vacate and remand for further proceedings consistent with this decision.

FACTS AND PROCEDURAL HISTORY

¶ 2 On February 14, 1912 — the instant it achieved the constitutional status of a state — Arizona acquired title to all lands below the high-water mark² in all navigable watercourses within its boundaries pursuant to the equal footing doctrine.³ Ariz. Ctr. for Law in the Pub. Interest v. Hassell, 172 Ariz. 356, 359-60, 837 P.2d 158, 161-62 (App.1991). However, determination of Arizona's title to the bedlands has lagged almost a century behind the State's admission to the Union because, until 1985, the only watercourse in which the State asserted an equal footing claim was the Colorado River. Id. at 360, 837 P.2d at 162 (citing Land Dep't v. O'Toole, 154 Ariz. 43, 46, 739 P.2d 1360, 1363 (App. 1987)). In 1985, the State claimed title to the beds of all Arizona watercourses that were navigable when Arizona became a state. Id. at 359-60, 837 P.2d at 161-62.

¶ 3 In 1987, the Arizona Legislature responded to the State's assertion of title by passing House Bill ("H.B.") 2017, "which attempted to relinquish most of the state's interest in Arizona's watercourse bedlands." Defenders of Wildlife, 199 Ariz. at 416, ¶ 3, 18 P.3d at 727. The legislation quitclaimed, without compensation, the bedlands of all rivers in the State except those of the Colorado, Gila, Salt, and Verde rivers. Hassell, 172 Ariz. at 360, 837 P.2d at 162. The legislation also allowed record titleholders of lands in or near the beds of the Gila, Salt, or Verde Rivers to obtain a quitclaim deed from the State for twenty-five dollars per acre. Id. The money received from these quitclaims was to be aggregated in a fund to be used to acquire land in riparian areas for public benefit. Id. The legislation further provided that "the public has the right to recreational use of surface waters between the current ordinary high water marks of a watercourse that was navigable as of February 14, 1912 without regard to the ownership of the bed." Id. (quoting former A.R.S. § 37-1104(A) (Supp.1990)).

¶ 4 The legislation was challenged in a lawsuit and, after the superior court entered summary judgment in favor of the defendants, this court reversed that judgment and remanded. Id. at 372, 837 P.2d at 174. We determined that, under the equal footing doctrine, the State holds title to the land located under its navigable waterways in trust for its citizens. Id. at 359-60, 364-65, 837 P.2d at 161-62, 166-67. Because H.B. 2017 failed in part to provide a mechanism for particularized assessment of the validity and value of the equal footing claims it relinquished, and we found substantial evidence in the record that might support a finding of navigability of rivers and streams other than the Colorado River, we held that the legislation violated the public trust doctrine⁴ and the Arizona Constitution's gift clause.⁵ See Hassell, 172 Ariz. at 363, 369-72, 837 P.2d at 165, 171-74; see also Defenders of Wildlife, 199 Ariz. at 416, ¶ 3, 18 P.3d at 727.

¶ 5 As a result of Hassell, the Arizona Legislature passed legislation in 1992 to again address the State's claims to the bedlands. See Defenders of Wildlife, 199 Ariz. at 416, ¶ 5, 18 P.3d at 727 (citing former A.R.S. §§ 37-1121 to -1131 (1993) (added by 1992 Ariz. Sess. Laws, ch. 297, § 3 (2nd Reg.Sess.) (eff. July 7, 1992))). The 1992 legislation established ANSAC and charged it with the responsibility for determining which watercourses were navigable at statehood by hearing evidence presented by the Arizona State Land Department ("ASLD") and the public. See id. ANSAC was to then issue a final administrative determination of navigability subject to judicial review. See id. The statutory criteria for determining navigability⁶ paraphrased the federal test set forth in The Daniel Ball, 77 U.S. 557, 563, 19 L.Ed. 999 (1870), superseded in part by statute as recognized in Rapanos v. United States, 547 U.S. 715, 723-34, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006):

Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.

¶ 6 After collecting information regarding the navigability of Arizona's rivers and streams, ANSAC on November 10, 1993, initially classified the Lower Salt River as having the characteristics of navigability at the time of statehood. See A.R.S. §§ 37-1125(A) (1993) (requiring ANSAC to initially classify a watercourse either as having characteristics of possible navigability as of February 14, 1912, or as having no such characteristics), -1126 (1993) (providing for public hearings after initial classification).

¶ 7 Soon after ANSACs initial classification of the River, the legislature made significant changes to the Commission's authority by amending the statutes governing its parameters and procedures, making ANSAC, in effect, "merely a fact-finding, legislative advisory committee." Defenders of Wildlife, 199 Ariz. at 416, ¶ 6, 18 P.3d at 727 (citing 1994 Ariz. Sess. Laws, ch. 277, §§ 1-14 (2nd Reg. Sess.) (eff. April 25, 1994)). In addition, the legislature's 1994 amendments subjected ANSAC to more restrictive, specifically-enumerated evidentiary presumptions and requirements when collecting information regarding navigability, effectively ensuring that ANSAC would find most if not all Arizona rivers non-navigable. See id. The Arizona Legislature later enacted Senate Bill 1126, which declared that many of Arizona's watercourses — including the Lower Salt, Agua Fria, Hassayampa, and Verde rivers — were non-navigable and disclaimed all rights and title of the State to those waterways. See 1998 Ariz. Sess. Laws, ch. 43, § 2 (2nd Reg. Sess.).

¶ 8 Defenders of Wildlife, the State, and...