AZ Stakeholders Wage High Stakes Battle Over Stream Navigability

Jack L. August, Jr., Ph.D., a historian in Northern Arizona University’s Statewide Programs, contributed this Guest View.

In 1910 G.E.P. Smith, the acclaimed University of Arizona hydrologist, declared in a widely referenced and oft-cited report that the Santa Cruz River was an “ever dwindling stream.” As Arizona statehood approached, the hydrologist concluded that the river had diminished to such an extent—he labeled it a “brook”—that its middle basin tributary, Rillito Creek, looked far more promising as a future water source. As one recent scholar of the river asserted, at the time of statehood in 1912 the Santa Cruz River, which had provided water for residents, wildlife, and vegetation for thousands of years had ceased to flow, and inhabitants of the river’s three basins—upper, middle, and lower—began the nearly century-long search beyond the basin to secure supplemental supplies for future growth and development.

I discussed this information, and much more, while I served as an expert witness before the cumbersomely named Arizona Navigable Stream Adjudication Commission. In this particular instance, Commission members, along with its attorney, listened to my testimony at the Nogales City Council Chamber, as I argued that the Santa Cruz was not navigable, nor susceptible to navigation, at the time of statehood, February 14, 1912. Further, I asserted that other mitigating circumstances, like the status of the Baca Float Land Grant Number 3, raised issues that suggested that portions of the upper Santa Cruz streambed—at least those that lay within Rio Rico properties—were privately owned. I stated that the legal and institutional history of the 100,000-acre Baca Float Number 3 “clearly demonstrates that private property rights were protected under the Treaty of Guadalupe-Hidalgo and the Gadsden Purchase, and that those property rights could not have passed in trust from the United States government to the State of Arizona.”

Two significant opponents to my argument, the State of Arizona and the Center for Law in the Public Interest, maintain that the river was navigable and therefore, the state should own the streambed. Immediately I felt the sting of cross-examination. “Dr. August, who hired you and how much are you being paid for your testimony,” the bright and assertive young attorney for the Center for Law in the Public Interest began as she tried to undermine my credibility with the Commission. Her tone was aggressive, unfriendly, and pointed. At that moment I realized that the stakes were high and that I was involved in a heavyweight fight over natural resources and private property that fell below the radar of the popular press. As I answered questions on direct testimony and later, cross-examination, I felt the stares of lawyers from the Salt River Project, Phelps Dodge, and environmental interests. Everyone in that small Nogales chamber, it seemed, took in each word, legal nuance, potential historical inaccuracy. What was I doing here?

It was historical oversight. Arizona’s pioneer legislatures, preoccupied with transforming a territory into a state, overlooked the issue of navigability of Arizona’s watercourses. This omission went unnoticed for nearly 75 years, when two claimants to Verde River streambed property asked a court to decide the rightful owner. The judge responded that he could not address the matter because he had no information about the Verde’s navigability or non-navigability at statehood. As a result, in the 1990s the ANSAC was formed in order to determine the navigability of Arizona’s 39,039 watercourses as of statehood, February 14, 1912. The determination of navigability or non-navigability of Arizona streambeds holds profound implications for private landholders in the State of Arizona.

The question of navigability is related directly to the “Equal Footing Doctrine” of the U.S. Constitution that asserts, among other things, that each state added to the union should be included on an equal footing with preceding states. Thus, each new state may own tidelands and the beds beneath its navigable streams. Put another way, the Equal Footing Doctrine suggests that the State of Arizona may own the streambeds within its boundaries that were navigable, or susceptible to navigation, at the time of statehood. Significantly, private citizens may own the beds of streams that did not support navigation at statehood. Therefore, it is essential that ANSAC determine which streams were navigable or susceptible to navigation as of statehood, and which were not.

Moreover, research suggests there are at least 100,000 clouded property titles related to streambeds in Arizona, and determining which watercourses were navigable at statehood—and which were not—is one of ANSAC’s two primary objectives. The Commission’s other chief goal is to determine the public trust values associated with those watercourses determined to have been navigable or susceptible to navigation at statehood. The Commission takes written testimony, oral testimony, analyses the evidence presented, then makes a final determination of navigability or non-navigability.

Stakeholders along the Salt and Gila, like those along the Santa Cruz, have intensified their resolve and are sharpening their legal strategies about navigability. Those involved in the hearings know that water, in its elegant simplicity, is at the same time inchoate and complicated, requiring the expertise of engineers, hydrologists, geologists, geomorphologists, historians, archeologists, and, of course, attorneys. And, as the Commission hearings attest, water is local, state, federal, and tribal. My most recent testimony concerning the middle reach of the Salt River, in which I represented the interests of the City of Tempe and Arizona State University, brought forward a growing number of competing interests. Salt River Project attorneys and their witnesses weighed in on these hearings, held in early April 2003, with vigor. As more testimony and evidence are submitted on the Salt and Gila rivers, and the implications of the ultimate determinations, one way or another, become clear, this unnoticed heavyweight fight will capture the public’s interest and command much attention from both private and public sectors.

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