State of Arizona v. Arizona Navigable Stream Adjudication Commission – 4/27/2010

May 4, 2010

NewsArizona Court of Appeals Division One Holds That Stream Adjudication Commission Must Consider What River Flow Would Have Been at Time of Statehood Without Man-Made Dams or Diversions in Determining River Navigability to Resolve Dispute Over Ownership of Arizona River Beds.

The Arizona Navigable Stream Adjudication Commission (“ANSAC”) is charged by statute with making the navigability determination required to resolve the dispute as to ownership of the river beds of Arizona’s rivers.  See A.R.S. §§ 37-1121, -1123(A), -1128(A).  If a river was navigable in its ordinary and natural condition at the time Arizona gained statehood on February 14, 1912, title to the river bed passed from the federal government to the State, and the State retains title.  If the river was not navigable in its ordinary and natural condition, then the neighboring riparian owners hold title.

Following a two-day evidentiary hearing in 2003 on the Lower Salt River between Granite Reef Dam and the confluence with the Gila River (“the River”), ANSAC determined at a January 27, 2004, public hearing that the River was not navigable at the time Arizona gained statehood.  ANSAC issued its final report (available at in September 2005. 

The Arizona State Land Department and State Land Commissioner, acting as an advocate for the public trust, filed a complaint in superior court seeking judicial review of the administrative decision.  After briefing and oral argument, the superior court affirmed ANSAC’s determination.  The State, Defenders of Wildlife, and other plaintiffs (collectively “Appellants”) appealed.

The Court of Appeals vacated and remanded. 

Under A.R.S. § 37-1101(5), a navigable watercourse is one “that was in existence on February 14, 1912, and at that time was used or was susceptible to 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.”  Interpreting the phrase “ordinary and natural condition” of a watercourse with pre-existing dams and diversions is an issue of first impression. 

Because the terms “ordinary” and “natural” each should be given distinct meaning, the Court of Appeals held that ANSAC was required to determine what the River would have looked like at the time of statehood in both “its ordinary (i.e., usual, absent major flooding or drought) and natural (i.e., without man-made dams, canals, or other diversions) condition.”  

In its final report, however, ANSAC had conflated the terms “ordinary” and “natural.”  The report found the River not navigable “even in the absence of the Roosevelt Dam and reservoir,” which were completed in 1910, shortly before Arizona’s statehood.   But the report failed to similarly account for the effects of numerous other dams, canals, and man-made diversions dating back 700 years, which the report appeared to consider part of the “ordinary and natural condition” of the River.   

The Court vacated the superior court judgment and remanded for ANSAC to consider whether the River would have been navigable had it been in its ordinary and natural condition on February 14, 1912.

 Judge Winthrop authored the opinion; Judges Irvine and Hall concurred.