Arizona Navigable Streams Adjudication Commission

On April 6, 2012, the Commission extended the deadline for filing a memorandum in response to the Commission’s request on February 27, 2012. Parties wishing to submit a memorandum to the Commission must do so by June 8, 2012 at 5:00 pm. The memorandum should comment on the legal impacts of the U.S. Supreme Court’s decision in PPL Montana, LLC v. Montana on the six remanded cases before the Commission and the appellate court’s instructions on remand, and suggest a proper course of action for the Commission. This memorandum should be no longer than 20 pages.
In addition, parties may supplement their filed memoranda with an analysis of whether it is necessary for the Commission to reopen the record and take testimony for each remanded case related to the segmentation issue that the U.S. Supreme Court focused on in its decision in PPL Montana, LLC v. Montana. The supplemental memorandum is also limited to 20 pages, and is also due to the Commission by June 8, 2012 at 5:00 pm. Parties that have not already filed a memorandum responding to the February 27, 2012 request by the Commission may combine issues into one memorandum, rather than file two memoranda to address the February 27, 2012 request and the April 6, 2012 supplemental request.
NOTE: New or supplemental briefs shall not include a response to the memoranda that have already been filed.
NOTE: Service by first class mail postmarked on or before the return date of June 8, 2012 satisfies the return date requirement.

Once ANSAC's work is done it will Sunset or go out of business. The present Sunset Date is June 30, 2016, however, the Commission expects to complete its work before that date.

PURPOSE: To help clear more than 100,00 clouded Arizona property titles to the land beneath Arizona's 39,039 rivers and streams. ANSAC's work pertains only to land beneath rivers and streams and not to water issues such as ownership, use, or diversion of water. There are many existing laws and agencies that deal with water ownership and use matters. Only the Colorado River is excluded from the ANSAC process, the bed of which is already owned by the government.

HOW: By gathering evidence, conducting engineering studies, and holding evidentiary navigability hearings on all of Arizona's 39,039 watercourses and in each of Arizona's 15 counties to determine which watercourses were navigable and which were non-navigable at time of statehood February 14, 1912.

WHY NAVIGABLE OR NON-NAVIGABLE: The actual beds/the land beneath rivers and streams that were navigable at time of statehood are subject to government ownership. The actual beds/the land beneath rivers and streams that were non-navigable at time of statehood are subject to ownership by the Arizona Citizen, by the private property owner whose land is adjacent the river or stream.

PROCESS: ANSAC determines navigability by holding evidentiary navigability hearings in each appropriate county seat where a watercourse flows. ANSAC holds two types of watercourse evidentiary navigability hearings. One type considers each major watercourse individually and holds hearings in each county into or through which a watercourse travels to determine navigability. When a watercourse borders two counties a hearing will be held in each respective county. Each major watercourse is studied by water engineers and other experts and the testimony and reports of these professionals as well as of other individuals including private citizens becomes evidence. The second type of hearing is done very much the same way except instead of studying a single particular watercourse, ANSAC studies all of the small and minor watercourses by county and holds hearings in the appropriate county seat to determine which watercourses were navigable at statehood and which were non-navigable at statehood. If a watercourse borders two counties then hearings are held in each county to determine navigability. All small and minor watercourses are reviewed in a process established by professional engineers that will allow any single small and minor watercourse to "drop-out", if it meets certain established criteria, to be studied further, individually, much as each major watercourse is studied.

In every instance, in addition to evidence provided by professionals ANSAC solicits information from everyone who is interested including from private citizens to be presented at each hearing. To obtain this evidence ANSASC advertises its interest in collecting evidence and its intent to hold a hearing once a week for three consecutive weeks in the legal advertising section of a newspaper of local circulation in the county where the hearing will be held, and in these ads ANSAC asks all interested parties including private citizens to submit all relevant information by a specific date to ANSAC for a future hearing and consideration by the commission. When the commissioners decide on a hearing date, it announces more than 30 days before the hearing in both a newspaper of local circulation and in a newspaper of statewide circulation that it will hold a hearing, including the date, time, and location/address of the planned hearing.

The Commission has held hearings in every Arizona county several times during the past few years.

MAPPING: Hydrologists and other engineers have studied Arizona's 39,039 watercourses as part of the ANSASC navigability studies process in such great detail that for the very first time, every Arizona watercourse has been mapped and is identifiable by USGS through GPS by Hydrologic Unit Code (HUC) Segment. And under the current statutes a portion or reach of a watercourse may be either navigable of non-navigable and other sections may be the opposite.

WHAT HAPPENS FOLLOWING A HEARING: At the conclusion of each hearing the Chair will announce the proceeding is closed and that includes any additional evidence unless the Chair or Commission has already ruled on admitting some for of evidence, such as a large map, at a later date. This same process pertains to each individual watercourse hearing as well as to small and minor watercourse hearings.

After the Commissioners have had time to review all of the evidence they will schedule another meeting and will discuss the matter and hold a public vote on the navigability of the particular watercourse or county wide small and minor watercourses. Following this vote and at the same meeting the Commissioners will instruct the Commission Director and Attorney to draft a report reflecting their position. Various drafts will be sent to the Commissioners for their editing and once all of the Commissioners are satisfied with the report another meeting will be scheduled at which time the Commissioners will vote to adopt the report. The report is signed by each of the Commissioners and is made public and is sent to the State Land Department. Following this the State Land Department has approximately 6 months, by statute, to decide whether to accept the findings of the commission or appeal the matter to the appropriate superior court. All other parties have a total of approximately 9 months rather than 6 months to appeal or not.

APPEALS: Appeals, or motions for judicial review are the process whereby a party challenges the Commission's decision in a particular matter in the appropriate County Superior Court. There are presently 5 watercourses pending appeal; three in Maricopa County Superior court; the Upper Salt River, the Verde River, and the Gila River. There are also two watercourses pending appeal in Pima County Superior Court, the San Pedro River and the Santa Cruz River. Very recently a motion for a pre-trial conference was filed by the Arizona Center for Law in the Public Interest in Pima County Superior Court regarding both the San Pedro River and the Santa Cruz River.

LOWER SALT RIVER: A motion for judicial review, appeal, was filed on March 24, 2006 in Maricopa County Superior Court regarding the Lower Salt River. This case has been through Maricopa Superior Court where the Commission prevailed, and through the Arizona Court of Appeals which remanded the case back to the Maricopa County Superior Court for further action by the Commission, but did not overturn the Commission's finding of non-navigability regarding the Lower Salt River. Motions were also filed with the Arizona Supreme Court and the U.S. Supreme Court but neither court accepted the case. Presently this case this case is being routed back through the Maricopa Superior Court to the Commission for further action by the Commission. The Arizona Court of Appeals Opinion was on April 27, 2010 but the case has not yet reached the Commission. Once the case has been returned to the Commission, the Commission will presumably meet and decide what to do.

The Commission regularly receives a number of questions regarding potential future hearings. The Commission has held more than 150 watercourse navigability evidentiary hearings including hearings in every county throughout the state during its various iterations these past few years. The Commission is not likely to schedule any navigability hearings unless required to do so by a court because the Commission has received evidence regarding all 39,039 watercourses in Arizona and has adjudicated all of these. Of these, including 17 major watercourses, six of ANSAC's hearing results have been appealed and five are presently under consideration in two State Courts. The other appealed matter, the Lower Salt River, is being returned to the Commission by the Arizona Court of Appeals and may require additional Commission work. ANSAC is presently busy completing the remaining three lengthy reports and is moving ahead with its work while awaiting decisions by the courts on the other five appeals. ANSAC will continue to hold business meetings when it is beneficial but will not hold navigability hearings unless absolutely necessary, partly because of the cost of statutorily required legal advertising for each hearing, which at times is as much as $5,000.00 per hearing, per statewide newspaper ad. If there are additional hearings there will also be additional commission reports.

To be redundant the Commission does not determine water use, ownership, or diversion issues. The Commission determines navigability or non-navigability of all of Arizona's 39,039 named and unnamed watercourses for property title purposes only. That is for land title to the beds of rivers and streams. The Commission does this through a detailed process of holding evidentiary hearings in every Arizona county. Until the Commission completes its work more than 100,000 property titles will remain clouded in Arizona. If, for example, you own a lot across which a dry wash travels and you sell that property the purchaser will not receive a clear title but instead will receive a clouded title stating in effect that who owns the bed to the stream, the land beneath the stream, is at issue and that you cannot be ceretain whether you or the government own title to the land of the bed until the work of this Commission has been completed. Therefore, it is of considerable benefit to the citizens of Arizona that the Commission complete its work.

The generally considered Political aspect of this issue is PRIVATE PROPERTY RIGHTS vs. GOVERNMENT OWNERSHIP OF LAND. The bed of a stream that is determined to be NAVIGABLE at time of statehood is subject to GOVERNMENT OWNERSHIP. The bed of a stream that is determined to be NON-NAVIGABLE is subject to PRIVATE PROPERTY RIGHTS or ownership by the person who already owns the property leading up to the stream. The Commission has held more than 150 evidentiary hearings throughout the State and has had to go through its process three times due to lawsuits challenging the laws and standards established by the Legislature to determine navigability. Thus far the Commission has declared every river and stream to have been non-navigable at statehood, therefore, the owner of the property that goes up to the stream also owns the land or bed beneath the stream.

EXAMPLE If you own a cabin and a lot in Northern Arizona and a stream that crosses your property is determined to be Navigable then the Government/the State and not you will own the bed, the land beneath the stream while you will still own the property on either side of the stream. This is true even if your relatives obtained title to the property decades ago through the process of Homestead.