House Bill 2084

46th Legislature, 1st Regular Session

Notwithstanding the bill reference title “state claims to streambeds”, HB2084, which follows, is a State Land Department bill and not a Navigable Stream Adjudication Commission bill.  The purpose of the bill is to clarify notification and other responsibilities of the State Land Department regarding Navigable Stream Adjudication Commission determinations of navigability or non-navigability.

As introduced, HB2084 and the House amendment appears to neither slow down nor otherwise negatively impact the work of the Commission.


PLEASE NOTE: In most BUT NOT ALL instances, the page and line numbering of bills on this web site correspond to the page and line numbering of the official printed version of the bills.

 

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 ¦                          REFERENCE TITLE: state claims to streambeds  ¦
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 ¦ State of Arizona                                                    ¦
 ¦ House of Representatives                                            ¦
 ¦ Forty-sixth Legislature                                             ¦
 ¦ First Regular Session                                               ¦
 ¦ 2003                                                                ¦
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 ¦                              HB 2084                                ¦
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 ¦                           Introduced by                             ¦
 ¦ Representatives O'Halleran, Huffman, Carruthers: Gullett, Hershberger ¦
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AN ACT

REPEALING SECTION 37-1127, ARIZONA REVISED STATUTES; AMENDING SECTIONS 37-1128, 37-1129, 37-1131 AND 37-1151, ARIZONA REVISED STATUTES; RELATING TO STATE CLAIMS TO STREAMBEDS.

(TEXT OF BILL BEGINS ON NEXT PAGE)

Be it enacted by the Legislature of the State of Arizona:

Section 1. Repeal

Section 37-1127, Arizona Revised Statutes, is repealed.

Sec. 2. Section 37-1128, Arizona Revised Statutes, is amended to read:

37-1128. Determination of navigability

A. After the commission completes the public hearing with respect to a watercourse, the commission shall again review all available evidence and render its determination as to whether the particular watercourse was navigable as of February 14, 1912. If the preponderance of the evidence establishes that the watercourse was navigable, the commission shall issue its determination confirming that the watercourse was navigable. If the preponderance of the evidence fails to establish that the watercourse was navigable, the commission shall issue its determination confirming that the watercourse was nonnavigable.

B. With respect to those watercourses that the commission determines were navigable, the commission shall, in a separate, subsequent proceeding, identify and make a public report of any public trust values associated with the navigable watercourse.

C. The commission shall make its determinations under subsections A and B of this section in writing with sufficient documentation and detail to confirm the rationale and basis for the determination. The determinations constitute final administrative determinations and are not subject to title 41, chapter 6, article 10.

D. The commission shall immediately notify the department of any watercourse that it determines to be navigable or nonnavigable under subsection A of this section. Within ninety days after receiving notice that a watercourse is THE DETERMINATION, THE DEPARTMENT SHALL PUBLISH A NOTICE OF THE DETERMINATION FOR THREE CONSECUTIVE WEEKS IN A NEWSPAPER OF GENERAL CIRCULATION IN EACH COUNTY IN WHICH THE WATERCOURSE IS LOCATED. THE NOTICE SHALL STATE:

1. THE NAME OF THE WATERCOURSE THAT IS THE SUBJECT OF THE COMMISSION'S DETERMINATION.

2. THE DATE OF THE DETERMINATION.

3. WHETHER THE COMMISSION DETERMINED THE WATERCOURSE TO BE NAVIGABLE OR NONNAVIGABLE.

4. WHETHER THE DEPARTMENT INTENDS TO SEEK JUDICIAL REVIEW OF THE DETERMINATION PURSUANT TO SECTION 37-1129.

5. THAT ANY PERSON WHO IS AGGRIEVED BY THE DETERMINATION HAS A RIGHT TO SEEK JUDICIAL REVIEW OF THE DETERMINATION PURSUANT TO SECTION 37-1129.

1. Navigable, the department shall send notice of that determination to each record owner of, and each person or entity that has an interest of record in, any property that may be affected by the determination and to each person or entity that has requested notification of any determination of navigability. The department shall include a statement of whether the department intends to seek judicial review of the commission's determination. Any time after the date of the notice under this paragraph, the record title owner or lessee of any affected property may petition the department in writing to disclaim, release, relinquish or dispose of the property from public trust land status as no longer necessary or materially useful for the purposes of the trust.

2. Nonnavigable, the department shall send notice of that determination to each person or entity that has requested notification of any determination of nonnavigability. The department shall include a statement of whether the department intends to seek judicial review of the commission s determination.

E. After the time for judicial review of the commission's determination with respect to any watercourse has expired, as provided in section 37-1129, the commission shall cause a record of its determination to be recorded in the office of the county recorder of each county in which any part of the watercourse affected by the determination is located.

Sec. 3. Section 37-1129, Arizona Revised Statutes, is amended to read:

37-1129. Judicial review

A. Within ninety days after the department issues a notice under either section 37-1128, subsection D, paragraph 1 or 2, the state land commissioner or any person who is aggrieved by the commission's determination may seek judicial review in superior court in the county in which all or part of any property THE WATERCOURSE that is directly affected by the determination is located.

B. Except as otherwise provided in this chapter, judicial review shall be conducted pursuant to title 12, chapter 7, article 6.

C. If separate actions are filed under this section with respect to the same watercourse or adjacent or proximate watercourses, on motion by any party to any such action or on its own initiative, the court may:

1. Order a joint hearing or trial of any matter in the actions.

2. Order all of the actions pending in any court to be consolidated.

3. Issue such orders concerning proceedings in the actions as may tend to avoid unnecessary costs or delay or as may be necessary to avoid inconsistent results.

Sec. 4. Section 37-1131, Arizona Revised Statutes, is amended to read:

37-1131. Notice to landowners; quiet title action

A. If the commission determines a watercourse to be navigable as provided in section 37-1128, the state land department shall do the following before it files any quiet title action regarding public trust property beneath or adjacent to the watercourse:

1. Collect information and perform land surveys that are necessary to determine where the department believes the exact location of the boundaries of the bed of the watercourse are located. The bed of the watercourse to which the state claim applies is the bed of the watercourse existing on the date of the commission's determination, unless the preponderance of the evidence establishes a different location. Before making this determination, the department shall provide public notice and any opportunity for comment by the advocate for private property rights established pursuant to title 41, chapter 8, article 1.1 and any other person.

2. Compile a complete description of each parcel of land lying wholly or partially in the bed of the watercourse, including record title ownership by any person, and a complete title search of each parcel to show how and when the lands were first conveyed in apparent violation of the public trust.

3. If the land was conveyed in apparent violation of the public trust by an agency of the United States, bring an action against the United States for damages and prosecute the action to final judgment. Any damages collected shall be placed in the riparian trust fund established by section 37-1156.

B. AT LEAST THIRTY DAYS BEFORE ENTERING ONTO ANY LANDS IN OR ADJACENT TO THE BED OF A WATERCOURSE AS REQUIRED FOR PURPOSES OF THIS SECTION, THE DEPARTMENT SHALL NOTIFY ANY RECORD TITLE OWNER OF THE PROPERTY BY CERTIFIED MAIL OF THE INTENTION TO INSPECT THE PROPERTY. THE NOTICE SHALL:

1. STATE THE PERIOD DURING WHICH THE DEPARTMENT OR THE DEPARTMENT'S CONSULTANT INTENDS TO INSPECT THE PROPERTY AND THAT THE INSPECTION IS REQUIRED UNDER SUBSECTION A OF THIS SECTION.

2. DESCRIBE THE ACTIVITIES THAT THE DEPARTMENT OR THE DEPARTMENT'S CONSULTANT INTENDS TO PERFORM ON THE PROPERTY.

B. C. Within thirty days after compiling the parcel information pursuant to subsection A, paragraph 2 of this section the department shall notify each record owner or lessee of property that is located in the bed of the navigable watercourse and each person and entity that have an interest of record in the property AND THE ADVOCATE FOR PRIVATE PROPERTY RIGHTS ESTABLISHED PURSUANT TO TITLE 41, CHAPTER 8, ARTICLE 1.1 of the commission's determination and that, by virtue of the determination, all or a portion of the property will be claimed as public trust land of this state in a quiet title action. The notice shall also provide information prepared by the advocate for private property rights explaining the person's rights and any services available from the advocate. THE NOTICE SHALL INCLUDE:

1. THE NAME OF THE WATERCOURSE AND THE DATE OF THE DETERMINATION OF NAVIGABILITY PURSUANT TO SECTION 37-1128.

2. THE LEGAL DESCRIPTION AND ACREAGE OF THE PARCELS THAT THE DEPARTMENT HAS DETERMINED TO BE IN THE BED OF THE WATERCOURSE.

3. A STATEMENT THAT RECORD TITLE OWNERS, LESSEES AND PARTIES HAVING AN INTEREST OF RECORD IN THE PARCELS HAVE A RIGHT TO APPEAL THE DEPARTMENT'S DETERMINATION OF THE PARCEL BOUNDARIES WITHIN THIRTY DAYS AFTER RECEIVING THE NOTICE AS PROVIDED BY TITLE 41, CHAPTER 6, ARTICLE 10.

4. A STATEMENT THAT THE ADVOCATE FOR PRIVATE PROPERTY RIGHTS IS OBLIGATED PURSUANT TO SECTION 41-1313 TO REPRESENT THE INTERESTS OF RECORD TITLE OWNERS OF RESIDENTIAL, NONCOMMERCIAL, SMALL BUSINESS AND AGRICULTURAL PROPERTIES IN MATTERS RELATED TO STATE CLAIMS TO THE BEDS OF WATERCOURSES, INCLUDING QUIET TITLE ACTIONS FILED BY THE DEPARTMENT, AS PROVIDED BY THIS CHAPTER.

C. D. The department shall not commence an action to quiet title to land under this article until the commission has issued a final determination regarding the navigability of the watercourse pursuant to section 37-1128 and that determination is subject to no further judicial review pursuant to section 37-1129.

D. E. Venue for any action to quiet title under this section is proper only in the superior court in the county in which the affected lands are located, but the court may grant or deny requests for change of venue pursuant to title 12, chapter 4, article 1.

E. F. The department shall join as parties to any action to quiet title under this section each record owner of, and each person or entity that has an interest of record in, any property in the county that may be affected by this state s claim to ownership of the bed of the affected watercourse, but this requirement does not constitute grounds for dismissing the action if the persons or entities not joined are not subject to the jurisdiction of the courts of this state.

Sec. 5. Section 37-1151, Arizona Revised Statutes, is amended to read:

37-1151. Petition to release public trust status

A. AFTER THIS STATE'S OWNERSHIP OF A NAVIGABLE WATERCOURSE IS CONFIRMED IN A QUIET TITLE ACTION AND AFTER THE COMMISSION REPORTS ANY PUBLIC TRUST VALUES ASSOCIATED WITH A NAVIGABLE WATERCOURSE PURSUANT TO SECTION 37-1128, SUBSECTION B, A RECORD TITLE OWNER OR LESSEE OF ANY AFFECTED PROPERTY, OR A PERSON OR ENTITY THAT HAS AN INTEREST OF RECORD IN ANY AFFECTED PROPERTY, MAY PETITION THE DEPARTMENT IN WRITING TO RELEASE THE PROPERTY FROM PUBLIC TRUST LAND STATUS.

A. B. In responding to a petition filed by a record title owner or lessee pursuant to section 37-1128, subsection D, paragraph 1 PURSUANT TO SUBSECTION A OF THIS SECTION the department shall consider the extent to which the property that has been confirmed to the state's ownership in a quiet title action, either because of its nature or because of changes, is no longer of material use for protecting public trust values. If the department concludes that the property is not of material use for protecting public trust values, the department shall consider the extent to which a release of the trust is appropriate in light of the public benefit to be derived from alternate uses, and the equitable interests or hardships of the record title holder or lessee, including each of the following:

1. The year in which the property was acquired by the record owner or lessee.

2. The entity or person from whom the property was acquired by the record owner or lessee.

3. The manner in which the record owner or lessee acquired the property.

4. The purchase price or lease terms paid by the record owner or lessee.

5. The amount of property taxes paid each year since the record owner or lessee acquired the property.

6. The profit or benefit derived from the property by the record owner.

7. The extent to which the record owner on the date of acquisition knew or should have known that the property was potentially trust land.

8. All improvements made to the property since the record owner or lessee acquired the property.

9. The public trust values identified by the commission PURSUANT TO SECTION 37-1128, SUBSECTION B.

10. Whether any improvements on the property impair, obstruct, promote or destroy the value of the watercourse for public trust values.

11. The existing uses of the property, its reasonable highest and best use and whether such uses impair, obstruct, promote or destroy the value of the watercourse for public trust values.

12. Whether the physical condition of the watercourse has materially changed since February 14, 1912 adversely affecting the watercourse's capability of being navigated, including changes due to construction of dams, reservoirs, dikes, levees, canals and ditches that were constructed for water conservation or flood control purposes by public entities, municipal corporations or the United States.

13. Any diminution in value to the record owner's or lessee's contiguous property caused by this state's ownership.

14. The degree of effect of continuation of the current use or any proposed change in use of the property on public trust values.

15. The impact of continuation of the current use or any proposed change in use of the property on the public trust values.

16. The impact of continuation of the current use or any proposed change in use of the property when examined cumulatively in conjunction with existing authorized impediments to full use of the public trust values.

17. The impact of continuation of the current use or any proposed change in use of the property on the public trust values if those values are considered with respect to the primary purpose to which the property is now suited.

18. The degree to which continuation of the current use or any proposed change in use requires that broad public uses be set aside in favor of more limited and private uses.

B. C. At least thirty days before issuing a decision that land may be released from the public trust under this section the department shall provide written notice of the proposed action and an opportunity to comment to any person who has previously requested written notice of actions under this section. The department shall provide contemporaneous written notice of the final decision to any person who filed a comment.

Sec. 6. Emergency

This act is an emergency measure that is necessary to preserve the public peace, health or safety and is operative immediately as provided by law.


COMMITTEE ON NATURAL RESOURCES, AGRICULTURE, WATER AND NATIVE AMERICAN AFFAIRS

HOUSE OF REPRESENTATIVES AMENDMENTS TO H.B. 2084

(Reference to printed bill)

Page 1, line 26, after the period, strike remainder of line; strike lines 27 through 45

Page 2, strike lines 1 through 10, insert "Within ninety one hundred eighty days after receiving notice that a watercourse is:

1.  Navigable, the department shall send notice of that determination to each record owner of, and each person or entity that has an interest of record in, any property that may be affected by the determination and to each person or entity that has requested notification of any determination of navigability. The department shall include a statement of whether the department intends to seek judicial review of the commission’s determination. Any time after the date of the notice under this paragraph, the record title owner or lessee of any affected property may petition the department in writing to disclaim, release, relinquish or dispose of the property from public trust land status as no longer necessary or materially useful for the purposes of the trust.

2.  Nonnavigable, the department shall send notice of that determination to each person or entity that has requested notification of any determination of nonnavigability. The department shall include a statement of whether the department intends to seek judicial review of the commission’s determination."

Strike line 19, insert "either section 37-1128, subsection D, paragraph 1 or 2, the state land"

Line 45, after the period, strike remainder of line

Page 3, strike lines 1 through 3, insert "Before making this determination, the department shall provide public notice and any opportunity for comment by the advocate for private property rights established pursuant to title 41, chapter 8, article 1.1 and any other person."

Page 3, lines 26 and 27, strike "and the advocate for private property rights established pursuant to title 41, chapter 8, article 1.1"

Strike lines 30 through 32, insert "title action. The notice shall also provide information prepared by the advocate for private property rights explaining the person's rights and any services available from the advocate. The notice shall include:"

Page 4, strike lines 1 through 6

Strike lines 25 through 33; line 34, strike "subsection A of this section" insert:

"A. In responding to a petition filed by a record title owner or lessee pursuant to section 37-1128, subsection D, paragraph 1"

Page 6, line 1, strike "B. C." insert "B."

Amend title to conform

and, as so amended, it do pass

TOM O'HALLERAN

Chairman

2084-nra

1/29/03

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