Who Owns the Land Beneath the Verde River?

Abstract

On December 15, 2015, the Arizona Navigable Streams Adjudication Commission (ANSAC) will hold a public hearing to determine whether the Verde River was a navigable river when Arizona became a state on February 14, 1912. If a watercourse was navigable at statehood the land beneath it became state land; otherwise the owners of the riparian land adjacent to the watercourse hold title to its banks and bed. In 2008, ANSAC determined that the Verde River was not navigable at statehood. The upcoming hearing follows a remand of this decision by the Superior Court of Maricopa, Arizona. The Superior Court cited the Court of Appeals decision in Winkleman to remand ANSAC’s finding that the Salt River was not navigable. Proponents of navigability bear the burden of proof and include the Arizona Attorney General, representing the Arizona State Lands Department and the State Land Commissioner as an advocate for the Public Trust; Arizona Center for Law in the Public Interest, attorneys for Defenders of Wildlife; and Maricopa County. Parties arguing against a finding of navigability are riparian land owners, including: Freeport Minerals Corporation, the Salt River Project, the Yavapai-Apache Nation, the Fort-McDowell Yavapai Nation, and the Salt River Pima-Maricopa Indian Community.8 This comment discusses the test that ANSAC must apply to determine navigability for title.