House of Representatives

SB 1275

nonnavigable streams; disclaimer of title

Now: streambed ownership; navigability

Sponsors: Senators Bowers, Guenther

 

DPA

Committee on Natural Resources & Agriculture

DPA

Caucus and COW

 

x

As Transmitted to the Governor

SB 1275 addresses the issues raised in the Arizona Court of Appeals decision (Defenders of Wildlife, et al. v. Governor Jane Dee Hull, et al) relating to state claims to streambeds. 

History

If a body of water or watercourse was navigable at the time of statehood, title to the bed of the stream or lake passed to the state upon admission into the Union.  A navigable watercourse is defined as one that, at the time of statehood, was used or susceptible of being used, in its ordinary and natural condition, as a highway for commerce, over which trade and travel were or could have been conducted in the customary modes of trade and travel on water.  Title to beds of waters that were not navigable at the time of statehood may pass to private landowners.

Although each state holds title to the beds underlying its navigable waters, courts have held that these lands are owned subject to a public trust and cannot be conveyed by the state unless such a conveyance promotes a public purpose.  (This is known as the Public Trust Doctrine.)

Since 1985, a series of lawsuits and legislative enactments have attempted to resolve the issue of streambed ownership in Arizona.  Laws 1987, Chapter 127, which disclaimed the stateís interest in all watercourses in the state except for the Gila, Verde and Salt Rivers, was determined to be unconstitutional by the Court of Appeals in 1991 (Arizona Center for Law in the Public Interest v. Hassell).

In response to the Hassell case, the Legislature established the five-member Arizona Navigable Stream Adjudication Commission (ANSAC) in 1992.  Created as a separate agency, ANSACís charge is to review evidence presented by the State Land Department and other persons regarding the navigability or nonnavigability of watercourses in this state as of February 14, 1912.  Statute provides a list of presumptive standards for ANSAC to consider in order to determine navigability and requires a report of findings and recommendations be submitted to the Legislature.  The Legislature is obligated to conduct legislative hearings, and if the Legislature finds the watercourse was nonnavigable, to enact legislation ratifying the commissionís findings.  If the Legislature finds the watercourse was navigable, legislation authorizing the State Land Department to claim the land and file an action to quiet title is required.

ANSAC has held more than 50 hearings to date and submitted findings and recommendations to the Legislature in 1998, 1999 and 2000 reporting nonnavigability for 14 rivers, two creeks and small and minor watercourses in three counties.  The Legislature ratified those findings (Section 37-1129 and Sections 37-1129.01 through 37-1129.16, ARS.)

The first legislative ratification in 1998 prompted a lawsuit alleging violation of the constitutional gift clause and the public trust doctrine.  On February 13, 2001, the Court of Appeals held the statutory standards used by ANSAC to determine navigability invalid.  The Court of Appeals also said Laws 1998, Chapter 43 is a forfeiture of watercourse bedlands, which violates the public trust doctrine and the Arizona Constitutionís gift clause.

SB 1275 addresses the issues raised in the Court of Appeals decision by either repealing or amending statutes relating to state claims to streambeds.

Provisions

Repealed sections

             Repeals ARS Sections 37-1129 and 37-1129.01 through 37-1129.16, which describe watercourses that were determined to be nonnavigable.  Those sections of law waived, relinquished and disclaimed the stateís rights, title and interest to the beds of the following watercourses: Agua Fria River, Skunk Creek, New River, Hassayampa River from the Gila River confluence to the headwaters, Salt River from Granite Reef Dam to the confluence of the Gila River, Verde River, Bill Williams River, San Pedro River, Santa Cruz River, Puerco River, San Francisco River, Gila River, from the New Mexico border to its confluence with the Colorado River, Big Sandy River, Burro Creek, Santa Maria River, Virgin River, and small and minor watercourses in La Paz County (1,597), Mohave County (5,146) and Yuma County (1,475).

Determination of Navigability or Nonnavigability

             Authorizes the ANSAC to determine the navigability or nonnavigability of a watercourse and deletes the requirement for Legislative action.  Currently, ANSAC provides findings and recommendations to the Legislature.

             Establishes preponderance of evidence as the burden of proof to determine navigability or nonnavigability of a watercourse.  Current law requires clear and convincing evidence to find that a watercourse was navigable at the time of statehood.

             Eliminates ANSACís authority to make an initial classification regarding navigability or nonnavigability of a watercourse.

             Deletes the presumptive standards and criteria currently used by ANSAC to recommend navigability or nonnavigability. [Note: Those standards related to: determining that an entire watercourse was nonnavigable if any portion was nonnavigable; historic commercial trade and travel; periodic flow based on precipitation; sustained upstream and downstream trade and travel; types of vessels used in 1912 on the watercourse; diversions for irrigation or reclamation projects; recreational uses; log flotation; presence of man-made impediments to navigation; customary methods of transportation near the watercourse; and consideration of flood conditions.]

             Changes the definition of bed of a watercourse to mean the land lying between the ordinary high watermarks. Under current law, the division between private property and state property along a navigable watercourse is the ordinary low watermark, which is the line on the banks created when the water recedes to its regularly recurring lowest state in normal years, without reference to unusual droughts.

             Requires ANSAC to immediately notify the State Land Department of determinations of navigability or nonnavigability. The SLD is required to notify property owners affected by the determination within 90 days and indicate whether the SLD intends to seek judicial review of the determination.

             Allows an affected property owner or lessee to petition the SLD to release the property from public trust land status. 

             If the SLD files an action to quiet title lands that have been determined to be navigable, the SLD shall unite all owners of record who are affected by the stateís claim to ownership of the bed of the watercourse in a single lawsuit.

Judicial review

             Provides a process for judicial review in superior court in the county in which the affected property is located. Judicial review may be sought by the State Land Commissioner or any person aggrieved by ANSACís determination.

             Allows separate actions involving the same watercourse to be consolidated, either at the request of any party to the action or on the courtís initiative.

             Allows legal counsel retained by ANSAC to represent ANSAC before other state agencies and in litigation.

Other provisions

             Extends ANSACís termination date from June 30, 2002 to June 30, 2004.

             Includes an intent clause that acknowledges the evidence gathered since 1994 and allows ANSAC to use the evidence produced to date, in addition to new information submitted by any interested party.

             Makes technical and conforming changes. 

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45th Legislature                                                                                                                                

First Regular Session                                   3                                                              May 8, 2001

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