Arizona Court of Appeals, Division One, holds that in the navigability-for-title context, a river’s susceptibility to use as a highway for commerce must be based on commercial use.

When Arizona joined the United States, it took title to the beds under all navigable waters in the state. The Arizona Navigable Stream Adjudication Commission (ANSAC) determines navigability of waters and, consequently, title. The remaining rivers in the adjudication are the Verde, the Salt, and the Gila.

To determine navigability, ANSAC must consider, in part, the river’s susceptibility to use as a highway for commerce at the time of statehood. For this consideration, ANSAC required a commercial purpose in determining the navigability of the Verde, Salt, and Gila. The Court of Appeals agreed. It held that “[w]hen a navigability determination is based on actual travel or susceptibility to travel, the travel must be for a commercial purpose, not just for recreation or other personal reasons.” The Court of Appeals further noted “[f]or example, self-guided recreational boating trips are not commercial use, but the Forty-Niner trips down the Gila to get to California were.” Ultimately, the Court of Appeals concluded that the Verde, Salt, and Gila were nonnavigable, except for a segment of the Gila where evidence supported that the segment would have been commercially useful before and at statehood.

Judge Gass authored the opinion, in which Judges Brown and Weinzweig joined.

Posted by: Brandon T. Delgado