Dow v. Az Nsac ( 2023 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
DEFENDERS OF WILDLIFE, et al., Appellants,
v.
ARIZONA NAVIGABLE STREAM
ADJUDICATION COMMISSION, et al., Appellees.
No. 1 CA-CV 20-0295
1 CA-CV 20-0296
1 CA-CV 20-0297
(Consolidated)
FILED 2-7-2023
Appeal from the Superior Court in Maricopa County
Nos. LC2019-000102-001
LC2019-000101-001
LC2019-000100-001
The Honorable Sigmund G. Popko, Judge Pro Tempore
AFFIRMED IN PART; REVERSED IN PART
COUNSEL
Arizona Center for Law in the Public Interest, Phoenix
By Jennifer B. Anderson 1, Daniel J. Adelman
Counsel for Appellants Defender of Wildlife, Donald Steuter, Jerry Van Gasse,
Jim Vaaler
1Jennifer B. Anderson presented at oral argument but has since left the
Arizona Center for Law in the Public Interest.
Fennemore Craig, P.C., Phoenix
By Sean Hood
Co-Counsel for Appellee Freeport Minerals Corporation
Snell & Wilmer L.L.P., Phoenix
By L. William Staudenmaier
Co-Counsel for Appellee Freeport Minerals Corporation
Salmon, Lewis & Weldon, P.L.C., Phoenix
By John B. Weldon, Jr., Mark A. McGinnis
Counsel for Appellees Salt River Project Agricultural Improvement and Power
District and Salt River Valley Water Users’ Association
Engelman Berger, P.C., Phoenix
By William H. Anger
Co-Counsel for Appellee City of Mesa
Mesa City Attorney’s Office
By Wilbert J. Taebel
Co-Counsel for Appellee City of Mesa
City of Phoenix, Office of the City Attorney, Phoenix
By Cris Meyer, Charles L. Cahoy
Counsel for Appellee City of Phoenix
Tempe City Attorney’s Office, Tempe
By Judith R. Baumann, Megan H. Tracy
Counsel for the Appellee City of Tempe
Morisset, Schlosser, Jozwiak & Somerville APC, Seattle, Washington
By Thane D. Somerville
Counsel for Appellee Salt River Pima-Maricopa Indian Community
Montgomery & Interpreter, PLC, Phoenix
By Susan B. Montgomery, Robyn L. Interpreter, Jay M. Tomkus
Counsel for Appellees Yavapai-Apache Nation and the Fort McDowell Yavapai
Nation
Office of General Counsel Gila River Indian Community, Sacaton
By Linus Everling, Thomas L. Murphy
Counsel for Appellee Gila River Indian Community
2
Perkins Coie LLP, Phoenix
By Matthew L. Rojas, Andrea J. Driggs, Karl J. Worsham
Counsel for Appellee Arizona Navigable Stream Adjudication Commission
The Sparks Law Firm, P.C., Scottsdale
By Joe P. Sparks, Laurel A. Herrmann
Counsel for Appellee San Carlos Apache Tribe
Gust Rosenfeld P.L.C., Phoenix
By Scott A. Malm
Counsel for Amicus Curiae Land Title Association of Arizona
OPINION
Presiding Judge David B. Gass delivered the opinion of the court, in which
Judge Michael J. Brown and Judge David D. Weinzweig joined.
G A S S, Judge:
¶1 The Arizona Navigable Stream Adjudication Commission
(ANSAC) has resolved title for most of Arizona’s rivers based on
navigability, finding all but the mighty Colorado to be nonnavigable. Three
rivers remain, the Verde, the Salt, and the Gila. This appeal promises to be
the last step in the streambed litigation, which began in the 1980s. As
relevant to this case, ANSAC found 20 segments of the 3 rivers
nonnavigable (6 segments of the Verde, 6 segments of the Salt, and 8
segments of the Gila). Of the 20 segments, 17 are the subject of this appeal.
¶2 Long ago, Mikhail Lermontov wrote, “Many a calm river
begins as a turbulent waterfall, yet none hurtles and foams all the way to
the sea.” 2 We must decide whether the law and facts support ANSAC’s
determination as affirmed by the superior court that no segment of three
Arizona rivers ran sufficiently calm and deep to be navigable when Arizona
became a state in 1912. 3 Ultimately, we affirm ANSAC’s finding of
nonnavigability on 16 of the 17 segments challenged in this appeal, the only
2 Mikhail Lermontov, A Hero of Our Time 117 (Dimitri Nabokov et al.
trans., A.A. Knopf 1992) (1840).
3 Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
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exception being 1 segment of the Gila. We conclude that segment was
navigable as a matter of law on February 14, 1912.
FACTUAL AND PROCEDURAL HISTORY
I. History of the Rivers and Navigability Adjudications in Arizona
¶3 For millennia, the first peoples to live in Arizona—including
the ancestors and current members of the sovereign tribal parties in this
case—settled alongside Arizona’s rivers, relying on them to support their
communities. And for hundreds of years, newcomers—like the Spanish and
early American settlers—came to rely heavily on these rivers as well.
¶4 On February 14, 1912, Arizona joined the United States on
equal footing with all states coming before it. Defenders of Wildlife v. Hull,
199 Ariz. 411, 415, ¶ 2 (App. 2001). Arizona, thus, took title to the beds
under all navigable waters in the state. See id.¶5 In 1987, Arizona’s legislature tried to resolve conflicting
riverbed title claims by “relinquish[ing] most of the state’s interest in
Arizona’s watercourse bedlands[,]” including the Verde, Salt, and Gila
riverbeds. State ex rel. Winkleman v. Ariz. Navigable Stream Adjudication
Comm’n, 224 Ariz. 230, 234–36, ¶¶ 3–7 (App. 2010). In 1992, after this court
ruled the 1987 changes were unconstitutional, the legislature adopted the
framework for resolving riverbed ownership by creating ANSAC and
“charg[ing] it with the responsibility for determining which watercourses
were navigable at statehood by hearing evidence presented by the Arizona
State Land Department [(ASLD)] and the public.” Id. at 235, ¶ 5. In 1994 and
1998, the Arizona legislature made further changes to ANSAC’s charge. Id.
at 236, ¶ 7. Those later changes failed, in part, because they circumvented
the federal legal standard for navigability. Id. at ¶ 8. Since then, ANSAC
adjudicated the navigability of around 39,000 streams—finding none to be
navigable. See Ariz. State Libr., Archives, & Pub. Recs., Arizona Navigable
Stream Adjudication Commission (ANSAC) (July 15, 2019),
https://azlibrary.gov/sla/agency_histories/arizona-navigable-stream-
adjudication-commission-ansac.
II. Adjudicating the Navigability of the Verde, Salt, and Gila
¶6 After a series of hearings from 2003 to 2006, ANSAC
determined all three rivers were nonnavigable, considering the upper and
lower Salt separately and the Verde and the Gila in whole. The superior
court vacated those determinations, concluding ANSAC failed to account
for the effect of diversions and other human impacts. See Winkleman, 224
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Ariz. at 241–42, ¶ 28 (holding ANSAC failed to evaluate lower Salt River in
its “natural” condition).
¶7 On remand, ANSAC reopened the record and followed the
United States Supreme Court’s decision in PPL Montana, LLC v. Montana,
which said tribunals must evaluate a river’s navigability segment-by-
segment. 565 U.S. 576, 594 (2012). ANSAC held another series of hearings
between 2014 and 2016, during which the parties’ expert witnesses testified
about the natural state of the waterways. The experts also detailed human
usage of the three rivers—including trade and travel—long before, around,
and after statehood.
¶8 Without objection, ANSAC adopted ASLD’s proposed
segmentation of the rivers. To begin, ANSAC divided the Verde into six
segments—beginning with segment 0 in the Verde’s headwaters at Sullivan
Lake and ending with segment 5 in the southernmost portion of the river
where the Verde joins the Salt. Next, ANSAC divided the Salt into six
segments—beginning with segment 1 in the northernmost portion of the
river and ending with segment 6 in the southernmost portion of the river
where the Salt joins the Gila. Last, ANSAC divided the Gila into eight
segments—beginning with segment 1 in the easternmost part of the Gila,
where it enters Arizona from New Mexico, and ending with segment 8 in
the westernmost part where the Gila joins the Colorado River in Yuma. The
parties do not dispute the segmentation on appeal.
¶9 In 2018, a majority of ANSAC’s five-member board
determined all the segments in the Verde, Salt, and Gila were nonnavigable
at statehood. One member dissented.
¶10 Defenders of Wildlife (DOW)—the navigability proponent—
unsuccessfully challenged ANSAC’s determinations in the superior court.
This court has jurisdiction under article VI, section 9, of the Arizona
Constitution, and A.R.S. §§ 12-120.21.A.1 and -2101.A.1.
ANALYSIS
¶11 DOW challenges the sufficiency of the evidence to support the
determinations. DOW also contends ANSAC failed to apply the correct
legal standards when it determined the three rivers were nonnavigable.
DOW and other parties also raise other issues related to the riverbeds’ title.
We address these issues in turn.
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I. Standard of Review and Burden of Proof
¶12 “On appeal from a superior court’s review of an
administrative decision, [this court] must determine . . . whether the
administrative action was illegal, arbitrary, capricious or involved an abuse
of discretion.” Eaton v. Ariz. Health Care Cost Containment Sys., 206 Ariz. 430,
432, ¶ 7 (App. 2003); see also A.R.S. § 12-910.F. This court, however, reviews
questions of law de novo, including whether ANSAC applied the
appropriate legal test to the facts. See Eaton, 206 Ariz. at 432, ¶ 7.
¶13 If ANSAC applied the correct legal tests, navigability is
usually a question of fact. Winkleman, 224 Ariz. at 238, ¶ 14 (citing Ariz. Ctr.
for Law in the Pub. Int. v. Hassell, 172 Ariz. 356, 363 n.10 (App. 1991)). Because
ANSAC is Arizona’s fact-finding agency for stream adjudications, this
court will not substitute its judgment on matters of fact unless ANSAC’s
findings are clearly erroneous. See Winkleman, 224 Ariz. at 238,
¶ 14. Instead, this court reviews “the record to determine whether
substantial evidence supports [ANSAC’s] decision and whether [ANSAC]
exercised its discretion reasonably and with due consideration.” Id. (citing
Callen v. Rogers, 216 Ariz. 499, 502, ¶ 9 (App. 2007); Siegel v. Ariz. State Liquor
Bd., 167 Ariz. 400, 401 (App. 1991)). But “[b]oth the standards and the
ultimate conclusion [in navigability cases] invo[l]ve questions of law
inseparable from the particular facts to which they are applied.” United
States v. Appalachian Elec. Power Co., 311 U.S. 377, 404 (1940), superseded in
part by statute as recognized in Rapanos v. United States, 547 U.S. 715, 723–34
(2006). This court, thus, “may draw its own legal conclusions from facts
found or inferred in the judgment and is not bound by findings of fact on
mixed questions of law and fact.” Huskie v. Ames Bros. Motor & Supply
Co., 139 Ariz. 396, 401 (App. 1984).
¶14 The legal standard does not impose a presumption for or
against navigability. “ANSAC’s approach and analysis must be wholly
impartial.” Winkleman, 224 Ariz. at 239, ¶ 18. But the proponent of
navigability, DOW, bears the burden of proving a river segment navigable
by a preponderance of the evidence. See id. at 238–39, ¶ 17.
II. Evidentiary Disputes
¶15 DOW argues ANSAC abused its discretion by improperly
considering certain evidence while failing to consider other evidence in
arriving at its decision on the navigability of the Verde, Salt, and Gila.
Moving through DOW’s evidentiary challenges, we address four issues:
(1) we first address if ANSAC erred by considering expert testimony about
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boating from individuals not qualified to testify on that subject matter; (2)
next, we decide whether ANSAC improperly relied on alleged “irrelevant
evidence,” such as evidence of non-boating transportation, land grants, and
land maps; (3) we then address the evidentiary weight of Arizona’s long
delay in asserting title to the riverbeds of the Gila, Verde, and Salt on
ANSAC’s navigability determinations; and (4) last, we decide whether
ANSAC erred by “failing to consider” certain evidence relevant to the
navigability of the three rivers, including ferry usage and the best evidence
of the rivers’ ordinary and natural condition.
A. Expert Testimony and Qualifications
¶16 DOW argues ANSAC erred in considering certain expert
testimony from persons not qualified as boating experts because their
boating testimony was speculative. DOW adds the superior court erred in
finding DOW waived these arguments by not objecting before ANSAC.
¶17 ANSAC must review and consider “all relevant historical and
other evidence.” A.R.S. § 37-1123.A; see also Winkleman, 224 Ariz. at 243,
¶ 31 (“[T]he determination of the relevance and weight to be afforded the
evidence is generally for ANSAC to make.”); Hull, 199 Ariz. at 425, ¶ 52. An
agency, board, or commission conducting a hearing is not limited by
evidentiary rules and has “exceptional discretion” to determine which
witnesses may provide expert testimony. Lathrop v. Ariz. Bd. of Chiropractic
Examiners, 182 Ariz. 172, 181 (App. 1995).
¶18 Even though the superior court found DOW may have
waived the argument, it reached the merits. And we agree with the superior
court’s merits analysis. To begin, DOW contended the testimony was
unqualified because “opponent’s expert witnesses had [n]ever boated or
tried to boat the Verde.” All parties agree all three rivers are not currently
in the same ordinary and natural condition they were at statehood. It
follows, then, whether an expert witness tried to boat one of the rivers today
is immaterial to their expert qualifications and to navigability.
¶19 Moreover, DOW points to a portion of one expert’s testimony
in which he did not explain the specific boats he envisioned in considering
navigability on Verde segments. That same expert was a hydraulic
engineering manager with 35-years’ experience consulting in hydrology
and rivers. He studied the depth, dynamic geomorphic character,
longitudinal variability, likelihood of periodic changes, vegetation, and
ranges of flows of the Verde. And, in his third day of testifying, he detailed
the types of boats in existence at statehood and their physical compositions.
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¶20 We cannot say this expert was unqualified to discuss the
rivers’ susceptibility to use by watercraft just because he lacked the moniker
“boating expert,” and DOW cites no authority to the contrary. To the extent
DOW asks us to reweigh evidence on appeal, we decline to do so. See
Winkleman, 224 Ariz. at 242, ¶ 29.
B. Reliance on Federal Surveys, Land Patents, Land Grants,
Maps, and Other Documents
¶21 DOW also contends ANSAC erred in relying on “irrelevant
evidence,” including non-boating transportation, land grants, and land
patents.
¶22 DOW argues this court in Hull precluded the use of non-
boating transportation when determining nonnavigability. See 199 Ariz. at
424–25, ¶¶ 47–48. DOW overstates Hull’s holding. Hull ruled ANSAC could
not presume nonnavigability based on non-boating transportation in
proximity to a watercourse, and ANSAC could not consider such evidence
“highly probative.” Id.; see A.R.S. § 37-1128.D.8 (2000) (repealed). Though
Hull rejected the “highly probative” standard, Hull acknowledged other
courts found evidence of non-boating transportation relevant. 199 Ariz. at
424–25, ¶¶ 47–48 (citing Monroe v. State, 111 Utah 1 (Utah 1946); Lykes Bros.
Inc. v. U.S. Army Corps of Eng’rs, 821 F. Supp. 1457 (M.D. Fla. 1993), aff’d, 64
F.3d 630 (11th Cir. 1995)). The Hull court did not say the evidence was
irrelevant, and we decline to do so here.
¶23 DOW also argues ANSAC erred by relying on federal
surveys, land patents, land grants, maps, and other documents because
“there is no indication that the surveyors understood, let alone applied, the
term ‘navigability’ as defined in The Daniel Ball and interpreted by federal
and state courts.” 77 U.S. (10 Wall.) 557, 563 (1870).
¶24 True enough, surveyors “not clothed with power to settle
questions of navigability” drew the land patents, land grants, and maps.
Oklahoma v. Texas, 258 U.S. 574, 585 (1922). But the evidence is still relevant
to ANSAC’s navigability assessment. See generally Ariz. R. Evid. 401
(evidence is relevant if it tends to make a fact of consequence “more or less
probable”). Other courts considering navigability-for-title have looked to
comparable evidence from early surveyors to inform their factual analysis.
See State v. Adams, 89 N.W.2d 661, 668–72 (Minn. 1957); Ryals v. Pigott, 580
So.2d 1140, 1171 (Miss. 1990) (Blass, J., dissenting); see also Lykes Bros., 64
F.3d at 636 n.5.
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¶25 The record shows no instance in which ANSAC relied on this
evidence or considered it highly probative in making its determination, and
we cannot say it is irrelevant to determining navigability. ANSAC did not
abuse its discretion in considering this evidence.
C. Delay in Asserting Title to Riverbeds
¶26 Salt River Pima-Maricopa Indian Community argues
Arizona’s delay in asserting title to the Verde, Salt, and Gila riverbeds is
evidence of nonnavigability. But ANSAC made no finding the delay was at
all probative. PPL Montana did note a state’s “long failure to assert title is
some evidence to support the conclusion that the river segments were
nonnavigable for purposes of the equal-footing doctrine.” 565 U.S. at 604.
But as Hassell said, “[t]hat generations of trustees have slept on public rights
does not foreclose their successors from awakening.” 172 Ariz. at 369.
Arizona’s decades-long failure to assert title simply is not probative of
navigability, and we find no error in ANSAC treating it as such.
D. Ignoring DOW’s Evidence
¶27 DOW argues ANSAC erred by disregarding evidence DOW
brought forward to prove the rivers’ navigability. Under A.R.S. §§ 37-
1123.A and -1128.A, ANSAC must consider all relevant evidence before it.
See Winkleman, 224 Ariz. at 243, ¶ 31. This court will defer to ANSAC’s
“determination of the relevance and weight [of] the evidence” when “the
evidence has indicia of reliability.” Id.
III. The Navigability Test
¶28 Arizona holds title to all riverbeds if the river was navigable
at the time of statehood. Hassell, 172 Ariz. at 359–60. Arizona must apply
the federal Daniel Ball test to determine whether a river was navigable
under the equal-footing doctrine. Hull, 199 Ariz. at 419, ¶¶ 16–17 (citing
Hassell, 172 Ariz. at 362; The Daniel Ball, 77 U.S. (10 Wall.) 557); PPL Montana,
565 U.S. at 592. The test is whether the river was “navigable in fact” at
statehood. Hull, 199 Ariz. at 419, ¶¶ 16–17 (quoting The Daniel Ball, 77 U.S.
(10 Wall.) at 563). Rivers are “navigable in fact when they are used, or are
susceptible of being used, in their natural and ordinary condition, as
highways for commerce, over which trade and travel are or may be
conducted in the customary modes of trade and travel on water.” See United
States v. Utah (Utah I), 283 U.S. 64, 76 (1931); see also The Daniel Ball, 77 U.S.
(10 Wall.) at 563.
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¶29 Arizona state law reflects the Daniel Ball test, though its
wording is slightly different. Under A.R.S. § 37-1101.5, a navigable river for
purposes of title means a river “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 on
water.”
¶30 Even if a parsing of the words in Arizona’s statute might yield
a different result than under the federal Daniel Ball test, the federal test
controls. See Hull, 199 Ariz. at 418–20, ¶¶ 14–16, 21. Arizona cannot expand
the federal navigability test because doing so would allow Arizona to take
title to rivers not navigable at statehood. See PPL Montana, 565 U.S. at 603(explaining “federal law determines riverbed title under the equal-footing
doctrine”). Arizona also cannot narrow the navigability test because doing
so would have Arizona abandon its title to rivers in violation of Arizona’s
trust obligations. See Winkleman, 224 Ariz. at 234–35, ¶¶ 3–4 (citing Hassell,
172 Ariz. at 359–60, 364–65, 369–72).
IV. Applying the Navigability Test
¶31 DOW argues ANSAC misapplied navigability throughout
these proceedings. To determine whether ANSAC “applied the proper
legal tests to the facts presented” and “exercised its discretion reasonably
and with due consideration,” we consider if ANSAC meets each essential
component of the navigability test in turn. See Winkleman, 224 Ariz. at 238,
¶ 14–15.
¶32 From the words of the test and navigability precedent, we
discern five essential components:
1. The river’s ordinary and natural condition at the time of
statehood. PPL Montana, 565 U.S. at 592; Winkleman, 224 Ariz.
at 241–42, ¶ 28.
2. The types of commerce, in terms of both trade and travel,
contemplated at statehood. PPL Montana, 565 U.S. at 600.
3. The customary modes of trade and travel on water at
statehood. Id. at 601.
4. Actual navigation of the river, before and after statehood.
Utah I, 283 U.S. at 11–12.
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5. The river’s susceptibility to use as a highway for commerce at
the time of statehood, assuming the river had been in its
ordinary and natural condition. PPL Montana, 565 U.S. at 600–
01.
¶33 ANSAC must determine navigability for each river segment,
not the entire river. See id. at 593. Because of geographical variations in river
conditions, commerce, modes of transportation, and actual navigation,
ANSAC must consider each of the essential components on a segment-by-
segment basis. See id. at 601. ANSAC, however, may conclude certain
components—for instance, customary craft—do not significantly vary
along a river. See id. ANSAC need not necessarily make express findings on
each component, for each segment, but it must at least demonstrate it has
considered all the components and the evidence material to them. See
Winkleman, 224 Ariz. at 240, ¶ 22.
¶34 DOW argues ANSAC erred as a matter of law in applying
each component. We address DOW’s arguments as to each component in
turn, combining our review of actual use and susceptibility because DOW’s
arguments on those components are interrelated.
A. Ordinary and Natural Condition
¶35 ANSAC had to consider what each river was like or would
have been like at statehood in its ordinary and natural condition.
Winkleman, 224 Ariz. at 241, ¶ 28; cf. United States. v. Holt State Bank, 270 U.S.
49, 56–57 (1926). Evidence of a river’s natural flow, obstacles, and channel
characteristics—specifically width and depth—is relevant to the analysis.
Oklahoma, 258 U.S. at 589; Utah I, 283 U.S. at 84–87.
¶36 The best evidence of a river’s natural condition is from
periods without significant man-made diversions and obstructions.
Winkleman, 224 Ariz. at 242, ¶ 30 (recognizing the Salt was in its natural
condition in the 1800s, after Hohokam diversions largely ceased, until
modern settlement began). ANSAC may consider evidence of the river’s
condition during other periods—though it may have “minimal probative
value”—but ANSAC must account for the effect of human impacts on the
river’s characteristics. Id. at 241–43, ¶¶ 28, 31.
¶37 DOW argues ANSAC erred when it disregarded the “best
evidence” of the rivers’ ordinary and natural condition from the period
after significant Native American diversions ceased but before significant
impacts from Euro-American settlers began. Because ANSAC did consider
this evidence, we disagree. ANSAC generally considered historical
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accounts and streamflow measurements from that period, and it considered
how natural forces (namely floods) and human impacts had changed the
rivers by the time of statehood and afterwards. ANSAC also generally
considered expert estimates of what streamflow would have been at the
time of statehood absent human impacts.
¶38 DOW admits ANSAC considered “extensive historical
evidence” from the 1800s but argues ANSAC “trivializ[ed] and
disregard[ed] this evidence.” To the extent DOW contends ANSAC erred
in weighing the evidence or considering other evidence, the law required
ANSAC to consider all relevant evidence. See Winkleman, 224 Ariz. at 243,
¶ 31; see also A.R.S. §§ 37-1123.A (“all evidence”), -1128.A (“all relevant
evidence”). And this court must defer to ANSAC’s determination of the
evidence’s relevancy when it has indicia of reliability. See id.; see also A.R.S.
§§ 37-1123.A, –1128.A. Except for segment 8 of the Gila, we generally find
no error in ANSAC’s application of the ordinary-and-natural-condition
component of the navigability test.
B. Highway for Commerce
¶39 In determining navigability, ANSAC must consider “the
kinds of commercial use,” in terms of both trade and travel, “that, as a
realistic matter, might have occurred at the time of statehood.” PPL
Montana, 565 U.S. at 600. Relevant evidence includes the types of industries
and trades in the vicinity of the river, the demand for personal
transportation, and the geographical context, such as where goods and
people were going and how they got there. See, e.g., Holt State Bank, 270 U.S.
at 57 (noting settlements used a lake connected to navigable rivers “in
sending for and bringing in their supplies”); Oklahoma, 258 U.S. at 583, 589–
90 (noting shipping boats ceased operating after railroads were constructed
in the vicinity about 30 years before statehood). But see Utah I, 283 U.S. at 83(explaining potential future profitable use may be relevant when
exploration and settlement explain a lack of commercial demand at
statehood).
¶40 ANSAC made findings about the types of commercial trade
and travel contemplated at statehood for the Verde and Gila, but not the
Salt. For both the Verde and the Gila, ANSAC listed transport of military
supplies, mining materials, and agricultural goods as well as travel and
transport of people as contemplated forms of commerce. For the Gila,
ANSAC also found people contemplated trapping and hunting. ANSAC,
however, made no findings about the types of commerce contemplated for
the Salt. Instead, ANSAC said the Salt “was not actually used as a ‘highway
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of commerce.’” ANSAC’s lack of findings regarding commerce
contemplated on the Salt takes away from its findings about customary
craft used on the Salt, which in turn gives DOW ammunition for its
argument.
¶41 DOW contends ANSAC “misconstrued the ‘highway for
commerce’ requirement” by focusing on whether the rivers were or could
have been used for “commercial” purposes, and if such purposes were
profitable. DOW posits “highway for commerce” encompasses either trade
or noncommercial travel. We begin with the commerciality analysis, then
turn to profitability.
1. Commerciality
¶42 Contrary to DOW’s argument, the navigability test does not
contemplate noncommercial travel. Though the United States Supreme
Court did not grant certiorari in PPL Montana to address the “highway for
commerce” component of the federal navigability test, it did clarify a
“highway for commerce” must have an element of “commercial reality.”
565 U.S. at 602–03. We agree with the Utah Supreme Court’s formulation:
“the touchstone of navigability is commercial utility.” Utah Stream Access
Coal. v. Orange St. Dev., 416 P.3d 553, 560, ¶ 29 (Utah 2017); see also Utah I,
283 U.S. at 81; The Daniel Ball, 77 U.S. (10 Wall.) at 560 (noting a river can be
“a highway for commerce” and navigable). When 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. See Utah Stream Access Coal., 416 P.3d at 560, ¶ 29; see also Alaska v.
Ahtna, Inc., 891 F.2d 1401, 1404 (9th Cir. 1989). Even so, courts have
recognized “commercial activity” can be broad enough to encompass the
“recreation industry.” Ahtna, 891 F.2d at 1405. But “commercial activity”
cannot be so broad as to include noncommercial travel. PPL Montana, 565
U.S. at 602–03. For example, self-guided recreational boating trips are not
commercial use, but the Forty-Niner trips down the Gila to get to California
(discussed in infra ¶ 91) were. See Utah v. United States (Utah II), 403 U.S. 9,
11 (1971).
¶43 To the extent Hull suggested noncommercial travel could
suffice, we disagree. See 199 Ariz. at 421, ¶ 28. Such a holding would depart
from Utah II. In Utah II, the United States Supreme Court upheld a
navigability determination for the Great Salt Lake because ranchers used
the lake to haul cattle and sheep. 430 U.S. at 11. Because livestock hauling
was “done by owners and ‘not by a carrier for the purpose of making
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Opinion of the Court
money,’” the Hull court determined the federal test did not turn on
commercial use. 199 Ariz. at 421, ¶ 28 (quoting Utah II, 430 U.S. at 11).
¶44 Contrary to Hull’s suggestion, Utah II did not find the
livestock owners used the lake for noncommercial purposes. Indeed, the
United States Supreme Court said “people who performed ranching
operations” used the lake. Utah II, 430 U.S. at 11. And the Court did not say
commercial use was irrelevant. Id. Instead, the Court said it was irrelevant
“the business of the boats was ranching and not carrying water-borne
freight.” Id.
¶45 DOW misplaces its reliance on Utah I and Utah II to support
its noncommercial travel argument. Neither Utah I nor Utah II say
susceptibility to noncommercial use was enough to establish navigability.
Utah I simply says limited, noncommercial use is relevant evidence of
whether “rivers are . . . capable of commercial use.” 283 U.S. at 82. And, as
explained in the previous two paragraphs, Utah II simply says any
commercial purpose will suffice. See 403 U.S. at 11. Put simply, neither
Utah I nor Utah II articulated a bright-line rule that noncommercial travel
establishes navigability per se. Instead, both cases highlight how limited
commercial and noncommercial uses can factor into a river’s susceptibility
to commercial use.
¶46 The commerciality requirement tracks both the federal test
and Arizona’s statutory corollary. Both the federal test and Arizona’s test
use the conjunction “and.” The federal navigability-for-title test looks for
use or susceptibility “as highways for commerce, over which trade and
travel are or may be conducted.” The Daniel Ball, 77 U.S. (10 Wall.) at 563
(emphasis added). In Arizona, a “‘navigable watercourse’ means a
watercourse” used or susceptible to use “as a highway for commerce, over
which trade and travel were or could have been conducted.” A.R.S. § 37-
1101(5) (emphasis added). Though some courts have interpreted the phrase
“trade and travel” as disjunctive, rather than conjunctive, we need not reach
that issue. See Utah Stream Access Coal., 416 P.3d at 560, ¶ 32. Indeed, the
conjunctive-disjunctive dichotomy is a red herring in the navigability-for-
title context, as demonstrated by a close review of Arizona’s definition of
“highway for commerce.”
¶47 Arizona defines a “highway for commerce” as “a corridor or
conduit within which the exchange of goods, commodities or property or
the transportation of persons may be conducted.” A.R.S. § 37-1101(3)
(emphasis added). Arizona cannot enlarge the federal navigability-for-title
test by using noncommercial travel to establish navigability because doing
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Opinion of the Court
so would vest title to Arizona in rivers that were not navigable at statehood.
See supra ¶ 29. As a result, to accord with the federal test, a highway for
commerce, as defined in A.R.S. § 37-1101(3), must be based on “the
transportation of persons” for commercial reasons. See Blake v. Schwartz, 202
Ariz. 120, 122, ¶ 10 (App. 2002) (citing State v. McDonald, 191 Ariz. 118, 120
(App. 1997)) (“If possible, this court has a duty to construe a statute so that
it will be constitutional.”).
¶48 Interpreting “travel,” under federal law, and “the
transportation of persons,” under Arizona law, to require a commercial
purpose obviates the dichotomy between “trade and travel” and “trade or
travel.” Once we view the navigability-for-title test through the lens of
“commercial utility,” the conjunctive-disjunctive debate becomes a
distinction without a difference.
¶49 In short, travel in the navigability-for-title context
encompasses commercial travel. ANSAC did not legally err by requiring
use or susceptibility for commercial purposes.
2. Profitability
¶50 DOW correctly argues the navigability-for-title analysis does
not require a “profitable” commercial enterprise. On this account, we agree
with Hull and need not revisit the issue here. See 199 Ariz. at 422, ¶ 34. But
Hull dealt with legislative presumptions and held navigability cannot hinge
on profitability. Id.; see A.R.S. § 37-1128.D.2 (2000) (repealed). ANSAC did
not err in considering profitability. Indeed, ANSAC rarely discussed
profitability and most references were direct quotes from DOW’s expert.
¶51 Though Hull rejects a profitability requirement, it does not
prohibit ANSAC from considering profitability when determining what
constitutes commerce. Profitability may be probative of whether
navigability is a “commercial reality.” See generally Ariz. R. Evid. 401, 402;
A.R.S. § 37-1123.A (directing ANSAC to receive, review, and consider all
relevant evidence). And considering DOW offered expert testimony on
profitability, DOW seems to believe it is probative as well. ANSAC did not
err in admitting and considering testimony on profitability as part of its
navigability analysis.
C. Customary Modes of Trade and Travel on Water
¶52 ANSAC had to consider the customary modes of trade and
travel used or that could have realistically been used for the types of
commerce contemplated on the river at statehood. See PPL Montana, 565
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Opinion of the Court
U.S. at 602–03; Ahtna, Inc., 891 F.2d at 1405. Customary modes may differ
for trade and travel. Utah I, 283 U.S. at 82. For instance, determining
steamboats could not have navigated a river to ship ore is not probative of
whether rowboats might have transported people. Cf. Oregon v. Riverfront
Prot. Ass’n, 672 F.2d 792, 795–96 (9th Cir. 1982) (considering whether river
was navigable for “log drives”).
¶53 DOW asserts ANSAC erred because it did not find the rivers
were navigable by small, low-draft watercraft, and in so doing, erroneously
required the rivers be navigable by large commercial vessels. We agree
ANSAC erred in this respect for segment 8 of the Gila (see infra § V-D), but
not for the Verde, the Salt, or segments 1 through 7 of the Gila.
¶54 ANSAC did not treat segments as “presumptively non-
navigable” based on the lack of large, commercial boating. See Hull, 199
Ariz. at 422–23, ¶¶ 35–37 (quoting A.R.S. § 37-1128.D.3 (2000) (repealed)).
For the Verde and Salt, ANSAC made findings about the watercraft
customarily used at the time of statehood. For the Verde, ANSAC found
various small boats and larger steamboats would have been customary, but
those boat types “would need a dependable and reliable draft of around
two feet.” ANSAC found there was not enough water in the river for
reliable navigation by rowboats and the like. The record reasonably
supports those findings.
¶55 For the Salt, ANSAC found at statehood that larger boats such
as “keelboats, steamboats, and mountain boats” would have been typical
for commercial trade and travel. ANSAC based its finding on expert
testimony about how canoes and other smaller boats were no longer
customary for commercial cargo hauling or passenger transportation by the
time of statehood. DOW correctly points out the record does not indicate
whether ANSAC considered if small boats might have been used on the Salt
for other commercial purposes, namely hunting and trapping, despite
evidence DOW cites showing multiple trappers used segment 6 in the
1890s. ANSAC’s analysis also does not discuss the types of commerce
contemplated on the Salt at statehood despite finding that hunting and
trapping were contemplated on the Gila at statehood. See infra § V-B. We,
however, conclude this gap in ANSAC’s analysis of the Salt does not merit
reversal because of our standard of review. See infra § V-B.
¶56 As for the Gila, ANSAC made no express finding about
whether small boats were customarily used at the time of statehood. We
address the oversight below. See infra § V-D. Ultimately, we conclude the
viability of small boats is not significant for segments 1 through 7 of the
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Opinion of the Court
Gila, but it is a significant component in our conclusion segment 8 was
navigable in fact at statehood. See infra § V-D.
D. Actual Use
¶57 ANSAC must consider evidence of actual use, before, around,
or after the time of statehood. See, e.g., Utah II, 403 U.S. at 12; Utah I, 283 U.S.
at 82; PPL Montana, 565 U.S. at 602–03. The river’s use as a highway for
commerce at those times is persuasive evidence. Utah I, 283 U.S. at 82.
Evidence of other types of use still may prove susceptibility. Id. The
analysis, thus, focuses on the characteristics of the boats used and the river’s
condition. See PPL Montana, 565 U.S. at 602–03; see, e.g., United States v. State
of Oregon, 295 U.S. 1, 20–21 (1935).
¶58 Here, ANSAC considered evidence of historical and modern
boating for all three rivers. For the Verde and Gila, ANSAC made findings
about how watercraft and river conditions compared to customary craft
and ordinary and natural river conditions at the time of statehood. For the
Salt, ANSAC made similar findings about modern boating. As to historical
boating, ANSAC said only “there [w]ere instances of historic navigation
under unique circumstances or within brief windows of time” and the Salt
“was never used for any type of regular trade or travel.” Still, DOW
correctly points out the record contains a handful of accounts about
successful downstream trips between the late 1800s and 1919 on segments
3 through 5 and more than a dozen such accounts on segment 6. For
segment 6, those trips included navigation throughout the year. We agree
ANSAC’s characterization of the trips as occurring “within brief windows
of time” is not quite accurate. But we find no abuse of discretion because
the record supports ANSAC’s finding historical use was not “regular.”
E. Susceptibility to Use
¶59 The Daniel Ball test required ANSAC to consider whether a
river in its ordinary and natural condition at the time of statehood was
susceptible for use as a highway for commerce. Utah I, 283 U.S. at 82.
ANSAC had to address whether it would have been commercially realistic
for customary craft to navigate the river. See PPL Montana, 565 U.S. at 601.
ANSAC could base its determination on a comparison of the river’s
condition and the operating requirements of customary craft. See, e.g., Utah
I, 283 U.S. at 85; see also, e.g., Utah II, 403 U.S. at 12. In the alternative, or in
addition, ANSAC could base its determination on evidence of actual
navigation. See PPL Montana, 565 U.S. at 601; see, e.g., Utah I, 283 U.S. at 82;
see also, e.g., Ahtna, Inc., 891 F.2d at 1405. Because the proper application of
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Opinion of the Court
the Daniel Ball test is a question of law, this court reviews the issue de novo.
See Winkleman, 224 Ariz. at 238, ¶ 15.
¶60 DOW contends ANSAC erred by failing to treat evidence of
irregular historic use as evidence of navigability and by misapplying the
law with respect to seasonal navigability. We address these arguments in
turn.
1. Irregular Historical Use
¶61 DOW contends ANSAC erred by overvaluing evidence the
rivers were not actually used as highways for commerce by implicitly
requiring that actual use be “commercially realistic” to support a
navigability determination. As to the Verde, DOW’s argument
misconstrues ANSAC’s decision. ANSAC’s analysis of the Salt and Gila are
closer calls.
¶62 For the Verde, ANSAC considered both actual use and
susceptibility, recognizing the distinction. ANSAC did not conclude the
Verde was nonnavigable solely because historic navigation was irregular
or commercially unrealistic. Instead, ANSAC concluded navigability
would have been too sporadic to be a “commercial reality” at the time of
statehood. ANSAC based its conclusion not just on the scarcity and
irregularity of historic navigation, but also on the Verde’s ordinary and
natural condition at statehood, the commercial context, and the customary
craft operating at the time of statehood. Because commercial use is relevant,
we cannot conclude ANSAC erred by finding a lack of commercial use
weighed against a navigability finding. See Utah I, 283 U.S. at 82. Though
DOW disagrees with the weight ANSAC assigned to the historical boating
evidence, this court cannot reweigh the evidence or substitute its judgment
for ANSAC’s. See Winkleman, 224 Ariz. at 242, ¶ 29.
¶63 For the Salt, ANSAC misconstrued the susceptibility
component of the Daniel Ball test. In analyzing the Salt’s susceptibility to
commercial navigation, ANSAC said people “simply failed to comprehend
the potential usefulness of the [r]iver as an avenue for navigation.”
¶64 ANSAC’s analysis focused on actual and regular commercial
use, implying it might be a prerequisite to navigability, at least in the
presence of sufficient commercial demand. DOW argues ANSAC erred
because well-established jurisprudence illustrates people need not have
used a river as a highway for commerce for the river to be navigable. A river
segment is navigable either if it was used or if it “[was] susceptible of being
used” as a highway of commerce at the time of statehood. PPL Montana, 565
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Opinion of the Court
U.S. at 600 (quoting Utah I, 283 U.S. at 76 (quoting The Daniel Ball, 77 U.S.
(10 Wall.) at 563)); see also Nw. Steelheaders Ass’n v. Simantel, 112 P.3d 383,
389 (Or. Ct. App. 2005). This point is true regardless of the commercial
demands in the area before statehood because the relevant period for
analyzing commercial demands is the time of statehood. See PPL Montana,
565 U.S. at 600; see also Utah I, 283 U.S. at 82. True, ANSAC could not
presume actual and regular commercial use was a prerequisite to
navigability. Still the record reasonably supports ANSAC’s nonnavigability
determination. ANSAC weighed the evidence, including the dearth of
evidence showing actual use in a populated area.
¶65 ANSAC found the Gila would have been used for commerce
if it had been susceptible for such use. ANSAC in fact rejected ASLD’s
arguments about people preferring to travel by wagon or train, for cost,
convenience, and capacity. But the record does not fully explain why. First,
ANSAC was particularly concerned with the Gila’s non-use for mining
purposes. That lack of mining use was not particularly probative of
segment 8’s navigability, because the mines would either need to transport
ore on segments 2 through 7 (which ANSAC found were not navigable) or
haul ore hundreds of miles by wagon to Dome (only to boat 15 miles or so
to Yuma). And just because the Gila was not a highway for shipping “tons
of ore” is not particularly probative of whether trappers and hunters might
have used the Gila to transport themselves and their pelts to and from the
hunting and trapping grounds.
¶66 Second, ANSAC’s susceptibility analysis was somewhat
flawed. Navigability precedent does not stand for the proposition that if
commercial use is not found, susceptibility also will not be found. Utah I
stands for the inverse proposition—commercial use may be the most
persuasive evidence of susceptibility. See Utah I, 283 U.S. at 82. In fact,
Utah I expressly recognizes commercial use may not develop before the
time of statehood, so the absence of commercial use does not preclude a
susceptibility finding. See id. As explained above, Arizona’s territory before
statehood fits within that scenario. Though the error is problematic for all
three rivers, the effect of this error on Gila’s segment 8 requires reversal
because of segment 8’s unique situation. See infra § V-D. As to the other
segments, sufficient evidence supports ANSAC’s findings such that it did
not abuse its discretion.
2. Actual Use and Nonuse
¶67 DOW argues ANSAC’s focus on actual use rendered the
susceptibility prong a nullity. We disagree.
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Opinion of the Court
¶68 Though actual use cannot subsume susceptibility, the United
States Supreme Court in PPL Montana recognized actual use, including
“[e]vidence of recreational use . . . may bear upon susceptibility of
commercial use at the time of statehood.” 565 U.S. at 600–01; see also Utah I,
283 U.S. at 82. Actual use is not dispositive. See Utah I, 283 U.S. at 82.
¶69 Though DOW highlights several sections of ANSAC’s
decisions discussing actual use in determining susceptibility, DOW fails to
recognize susceptibility is not severable from the greater navigability
context. Whether a river segment is susceptible to navigation depends on
the rest of the Daniel Ball test—the natural and ordinary condition of the
river segment and what constituted commerce at and around statehood.
¶70 Consistent with this framework, ANSAC did not rely solely
on actual use when making its susceptibility analysis. Instead, ANSAC
considered the voluminous record to determine: the types of commerce at
statehood; the rivers’ physical characteristics, geomorphology, and
hydrology; and actual use during various historical periods—all of which
bore on susceptibility. And ANSAC discussed actual use in the context of
exploration, settlement, and commercial needs, seeking an explanation as
to why people had not actually used a segment for commerce if that
segment was susceptible to commercial use.
¶71 Because actual use may be the “most persuasive” component
in the susceptibility analysis, we cannot say ANSAC abused its discretion
by relying heavily—but not exclusively—on nonuse. See Winkleman, 224
Ariz. at 243, ¶ 31 (“[T]he relevance and weight to be afforded the evidence
is generally for ANSAC to make.”). Though DOW brought forth evidence
to explain nonuse, ANSAC considered DOW’s explanation unconvincing.
The weight ANSAC places on evidence influencing susceptibility goes to
whether ANSAC properly applied the navigability test. Except as to
segment 8 of the Gila, it did.
3. Seasonal Navigability
¶72 A river may be navigable even if it is not susceptible to
commercial use all the time or even most of the time. Susceptibility need
only be persistent and regular enough to make navigation “a commercial
reality.” PPL Montana, 565 U.S. at 602–03; Utah I, 283 U.S. at 87 n.12.
Seasonal navigability is sufficient to establish navigability in fact, even if
the season is short but still ordinary and long enough to make commercial
use realistic. Compare Oklahoma, 258 U.S. at 591 (explaining navigability
cannot be “confined to the irregular and short periods of temporary high
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Opinion of the Court
water”) with Econ. Light & Power Co. v. United States, 256 U.S. 113, 122 (1921)
(explaining navigation need not “be open at all seasons of the year, or at all
stages of the water”); see also Riverfront Prot. Ass’n, 672 F.2d at 795.
¶73 DOW argues ANSAC failed to recognize periodic navigation
can support navigability. Contrary to DOW’s argument, ANSAC did not
impose a requirement of constant navigability. But it did reject navigation
“so brief that it . . . is not a commercial reality, requiring more than
[o]ccasional use in exceptional times.” ANSAC characterized the three
rivers’ flows as “erratic,” “highly variable,” and fluctuating between flood,
even flow, and dryness. Those findings were relevant to whether boating
would be commercially realistic. DOW also faults ANSAC for considering
whether historical trips took place during a period of “high flows.” But
river conditions during boat trips are relevant and necessary to determine
whether actual use supports the susceptibility determination. See PPL
Montana, 565 U.S. at 601. Because ANSAC received competing evidence on
the natural and ordinary condition of the rivers and what constituted
realistic commerce at statehood, we cannot say ANSAC misapplied the law
with respect to seasonal navigability.
V. Sufficiency of the Evidence
¶74 DOW argues substantial evidence does not support ANSAC’s
nonnavigability findings for segments 1 through 5 of the Verde, segments
3 through 6 of the Salt, and all segments of the Gila. “[T]his court considers
the river on a segment-by-segment basis to assess whether the segment of
the river, under which the riverbed in dispute lies, is navigable or not.” PPL
Montana, 565 U.S. at 577. Here, no party disputes ANSAC’s segmentation.
¶75 “In reviewing the superior court’s ruling affirming an
agency’s order, [this court] ‘independently examines the record to
determine whether the evidence supports the judgment,’ under a
preponderance of the evidence standard.” Parsons v. Ariz. Dep’t of Health
Servs., 242 Ariz. 320, 322, ¶ 10 (App. 2017) (quoting Webb v. State ex rel. Ariz.
Bd. of Med. Exam'rs, 202 Ariz. 555, 557, ¶ 7 (App. 2002)). Substantial evidence
exists when the record supports the agency’s decision, “even if the record
also supports a different conclusion.” Gaveck, Ariz. State Bd. of Podiatry
Exam’rs, 222 Ariz. 433, 436, ¶ 11 (App. 2009). This court views the evidence
in a “light most favorable to upholding the [agency’s] decision and will
affirm if any reasonable interpretation of the record supports the decision.”
Lewis v. Ariz. State Pers. Bd., 240 Ariz. 330, 334, ¶ 15 (App. 2016) (citing Baca
v. Ariz. Dep’t of Econ. Sec., 191 Ariz. 43, 46, ¶ 6 (App. 1997)).
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Opinion of the Court
A. The Verde
¶76 Citing evidence of historical use, DOW argues ANSAC erred
by finding segments 1 through 5 of the Verde nonnavigable. Because
substantial evidence supports ANSAC’s findings of nonnavigability, we
disagree.
¶77 ANSAC found segments 1 through 5 nonnavigable based on
the following factual findings: (1) unpredictable flooding caused persistent
channel changes; (2) seasonal periods of high flows; (3) a lack of historical
use as a highway for commerce; (4) federal survey evidence and federal
patent evidence; (5) historical descriptions of the Verde as well as its
hydrology and geomorphology; (6) differences in modern boats; and
(7) river obstacles.
¶78 Those findings are sufficient to support ANSAC’s
nonnavigability determinations for all five segments. ANSAC cited experts’
estimates of median river depths, based on undepleted flows, of less than
two feet for segments 1 through 5. ANSAC found boats readily available at
the time of statehood, like flat-bottom fishing boats and rowboats, would
need “around two feet.” ANSAC also cited evidence of natural rapids of
Class II grade in segments 1, 2, and 5, Class III grade in segment 4, and Class
IV grade in segment 3. DOW has not challenged these specific findings,
which are plainly sufficient to establish even the smallest boats would not
have been able to reliably navigate the Verde. DOW cites other evidence
favoring navigability, asserting that evidence was “far more than a
preponderance.” But we must affirm ANSAC’s determination because the
record supports it, even if sufficient evidence supports a contrary
conclusion.
B. The Salt
¶79 DOW next argues ANSAC erred when it found segments 3
through 6 of the Salt nonnavigable because evidence about historical
boating and customary craft compelled a navigability finding. We disagree.
¶80 ANSAC concluded the Salt was not navigable because natural
impediments to navigation “would require portages” because of the
irregularity of historic use, and because modern boating evidence was
unpersuasive given dissimilarities in boat durability. Even so, ANSAC’s
analysis of historical boating on the Salt is not comprehensive. See supra
§§ IV-C, IV-E. Because DOW premises its argument on historic boating
evidence and customary craft, rather than modern boating, the remaining
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Opinion of the Court
issue is whether the record supports ANSAC’s conclusion segments 3
through 6 required portage.
¶81 ANSAC described segments 5, 6, and parts of segment 3 as
wide, shallow, and extensively braided. ANSAC also noted “bars” in
segment 6. ANSAC further noted hydrological records showing the Salt
flowed erratically, “fluctuating between flood, even flow, and dryness.”
ANSAC cited evidence of natural Class II rapids in segments 3 through 5
and shallow riffles in segment 6. ANSAC also cited evidence showing,
before statehood, federal surveyors described the Salt as shallow and did
not note characteristics of navigability in their surveys. And ANSAC noted
federal land grants did not depict the Salt as navigable.
¶82 DOW points to evidence that could sustain an opposite
conclusion. The record suggests Class II rapids are navigable, “without
scouting,” with only “occasional maneuvering.” ANSAC’s analysis did not
say sandbars, riffles, rapids, or fluctuating river flows would have served
as portage-like barriers to commercial navigation on the Salt. See Utah I, 283
U.S. at 85–87. DOW also argues the navigability conclusions of surveyors
and federal agencies are not particularly probative as they are not “clothed
with power to settle questions of navigability.” See Oklahoma, 258 U.S. at
585. And their observations of “shallowness” are too vague to be useful in
determining whether the segments might be navigable by low-draft boats.
Assuming small boats were customary at the time of statehood, the record
suggests operating depths of one to two feet would be reasonable, with
lower depths necessary in sections without rapids. The record suggests the
undepleted river had median depths of at least 1.5 feet in the four segments
but contains conflicting evidence about whether depths exceeded 2 feet.
¶83 ANSAC faced an enormous record and had the responsibility
of weighing various components with competing, and sometimes
contradictory, evidence. ANSAC had the duty to weigh the evidence. See
Winkleman, 224 Ariz. at 242, ¶ 29. ANSAC did not specifically indicate how
it weighed this conflicting evidence. Even so, “[i]n reviewing factual
determinations, we will not substitute our conclusion for that of the
administrative agency; instead, we review the record to determine whether
substantial evidence supports the agency’s decision and whether the
agency exercised its discretion reasonably and with due consideration.” See
id. at 238, ¶ 14. We, thus, affirm ANSAC’s conclusion regarding segments 3
through 6 of the Salt.
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Opinion of the Court
C. The Gila
¶84 Again, citing historical evidence, DOW argues ANSAC erred
when it found all the Gila nonnavigable. As to segments 1 through 7, we
disagree.
¶85 ANSAC concluded the Gila was nonnavigable based on the
following factual findings: (1) unpredictable flooding caused persistent
channel changes and seasonal high-flow periods; (2) a lack of historical or
modern use as a highway for commerce; (3) natural Class II and III rapids
in segment 4 and natural Class I rapids in segments 1, 2, and 5; (4) “highly
braided channel[s]” in segments 1, 3, and 6 at the time of statehood because
of flooding around the turn of the century; (5) sandbars, rock outcroppings,
beaver dams, marshes, strainers, and other obstacles in “various parts of
the river”; (6) improved navigability of modern boats; and (7) almost all
observers before and at the time of statehood considered the Gila
nonnavigable.
¶86 Those findings—when viewed in the light most favorable to
affirming ANSAC—are sufficient to support ANSAC’s nonnavigability
determination. Despite other compelling evidence, ANSAC did not err in
finding the lack of regular historical use was compelling evidence of the
Gila’s nonnavigability. See supra § IV-E-1. ANSAC discussed the evidence
of historical boating on the Gila at length. Though the record may also
support DOW’s assertion boating was common enough to compel a
navigability determination, the record is sufficient to uphold ANSAC’s
determination to the contrary.
¶87 ANSAC’s findings regarding rapids, channel changes,
sandbars, rock outcroppings, beaver dams, marshes, strainers, and other
obstacles do not necessarily compel a nonnavigability determination. See
Utah I, 283 U.S. at 82–87. Again, viewing the record in the light most
favorable to upholding ANSAC’s nonnavigability determination, the
record sufficiently supports ANSAC’s findings.
¶88 Historical observations about a river’s nonnavigability are of
limited probative value. See Oklahoma, 258 U.S. at 585. But here, the
historical observations were the best evidence of the Gila’s ordinary and
natural condition, see Winkleman, 224 Ariz. at 242, ¶ 30, and ANSAC did not
indicate whether it found the historical observations or expert estimates
more credible.
¶89 DOW argues the evidence compels a navigability
determination. We agree the record could reasonably support such a
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Opinion of the Court
finding. Even so, we affirm the nonnavigability determination except for
segment 8 because substantial evidence supports ANSAC’s decision and
reasonably supports the opposite conclusion. See Winkleman, 224 Ariz. at
238, ¶ 14.
D. Segment 8 of the Gila
¶90 ANSAC found “the evidence regarding navigability and
nonnavigability [was] evenly weighted” and, thus, concluded that segment
8 was nonnavigable. Because of errors described below, the scales tip in
favor of navigability based on ANSAC’s own assessment of the evidence.
¶91 ANSAC cited historical accounts of depths of 9 to 15 feet in
segment 8 between the 1850s and the 1890s, from the period during and
immediately after the river was in its ordinary and natural condition.
ANSAC also noted accounts reported the river was dry during “some
seasons” in segment 8, but seasonal lows do not preclude a finding of
navigability. See supra § IV-E-3. Small, low-draft boats would have had no
trouble navigating at the reported depths, and the record suggests larger
craft such as barges, mountain boats, and even steamboats would have been
capable as well. Those craft would have been commercially useful for
transporting people, military supplies, mining materials, and agricultural
goods as well as for hunting and trapping, which ANSAC found were types
of commerce “contemplated prior to and at statehood” on the Gila. See
§ IV-C. As such, based on the ordinary and natural river conditions, the
commercial demands, and the customary watercraft, segment 8 would have
been susceptible to at least seasonal commercial use.
¶92 Likewise, the historical boating evidence on segment 8
compels a navigability finding. ANSAC cited many reports of successful
downstream boat trips on segment 8 before the turn of the century. ANSAC
noted: (1) the Howard family boating from Gila Bend to Yuma in 1849;
(2) a “few accounts” of Forty-Niners traveling to Yuma in small boats;
(3) the Hamilton party taking a homemade skiff from Phoenix to Yuma in
1879; (4) William Eaton “clear[ing] $1,500”on the lower Gila in 1884; (5) the
Day brothers trapping along the lower Gila in 1891 to 1892; (6) G.W. Evans
and Amos Adams traveling from Phoenix to Yuma in a homemade wooden
flat boat in 1895; (7) and Lieutenants Gully and Richardson floating another
homemade wooden boat from the Pima Villages to Yuma in 1896. The
record also contains evidence of steamboats traveling a handful of miles
upstream from the Colorado River confluence in the 1860s.
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Opinion of the Court
¶93 Though a few of those trips happened while the Gila was in
its ordinary and natural condition, most were after significant diversions
had occurred. Those diversions generally would have made navigability
more difficult. The boats used in the trips listed in the paragraph above
would have been meaningfully similar to boats at the time of statehood.
And steamboats aside, at the very least, the historical evidence of small
boats navigating segment 8 shows that segment was susceptible to
commercial use for hunting and trapping in small boats at statehood.
¶94 In sum, the evidence of the Gila’s pre-diversion condition and
navigation was not, as ANSAC said, “evenly weighted.” Instead, DOW met
its burden, by a preponderance of the evidence, of showing segment 8 was
at the time of statehood susceptible to use for trade and travel as a highway
for commerce. We need not consider ANSAC’s failure to address the effects
of human impacts because the human impacts would have reduced, not
increased, the flow rate at the time of statehood. See Winkleman, 224 Ariz. at
241–42, ¶ 28. And as noted above, even without considering those effects,
segment 8’s flow rate was sufficient to establish navigability. As a result,
we reverse ANSAC’s nonnavigability finding on segment 8 of the Gila and
hold segment 8 of the Gila was navigable at statehood.
VI. Title to Riverbeds
A. Pre-Statehood Dams
¶95 SRP argues this court may not reverse a finding of
navigability if it determines any segments of the Salt or lower segments of
the Gila would be navigable but for the federal government’s construction
of pre-statehood dams—primarily the Roosevelt Dam and Granite Reef
Dam—or diversions under the Reclamation Act. Specifically, SRP argues
because the 1910 Arizona-New Mexico Enabling Act reserved the federal
government’s interest in the riverbeds subject to pre-statehood projects
pursued under the Reclamation Act, this court should find any such
projects have no bearing on the rivers’ ordinary and natural condition. We
disagree.
¶96 “States enjoy a presumption of title to submerged lands
beneath inland navigable waters within their boundaries.” Alaska v. United
States, 545 U.S. 75, 78 (2005). But “[t]he Federal Government can overcome
the presumption and defeat a future State’s title to submerged lands by
setting them aside before statehood in a way that shows an intent to retain
title.” Id. at 79 (citing United States v. Alaska, 521 U.S. 1, 33–34 (1997)). The
federal government’s “intent . . . must be definitely declared or otherwise
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Opinion of the Court
made very plain.” See id. (citing Alaska, 521 U.S. at 34) (quoting Holt State
Bank, 270 U.S. at 55).
¶97 SRP relies on two United States Supreme Court cases. See id;
Idaho v. United States, 533 U.S. 262 (2001). But these cases both deal with
riverbeds underlying pre-statehood federal reservations. Alaska, 545 U.S. at102–03; Idaho, 533 U.S. at 265–71. To the extent SRP argues the federal
government reserved title to the submerged lands, we do not resolve that
issue because the issue before ANSAC was navigability, not riverbed
ownership.
¶98 As part of this argument, SRP urges this court to adopt a rule
excepting the effects of federal infrastructure made under a federal
reservation on a river’s ordinary and natural condition. But the federal test
for navigability is whether the rivers would have been navigable in their
“natural and ordinary condition” at statehood. PPL Montana, 565 U.S. at 592(quoting Oklahoma, 258 U.S. at 591). And this court has already considered
and rejected an approach allowing ANSAC to ignore the effects of pre-
statehood dams and diversions. See Winkleman, 224 Ariz. at 240–41, ¶¶ 23–
28. As a last point, SRP cites no authority to support this proposition, and
we find none.
B. Riverbed Title on Indian Reservations
¶99 We need not resolve the effect of our ruling on portions of
riverbeds lying within the Yavapai-Apache Reservation, Fort McDowell
Yavapai Nation, Gila River Indian Reservation, San Carlos Apache Indian
Reservation, and Salt River Indian Reservation. See Ariz. Const. art. 20, § 4.
Segment 8 of the Gila is the only segment we conclude was in fact navigable
at statehood, and no portion of segment 8 lies within a federally recognized
Indian reservation.
¶100 This court’s ruling on navigability or nonnavigability, thus,
has no consequence on any tribe’s title to lands in Indian country.
ATTORNEY FEES
¶101 DOW requests attorney fees under A.R.S. § 12-348 and “the
private attorney general doctrine” as laid out in Arnold v. Ariz. Dep’t of
Health Servs., 160 Ariz. 593 (1989). Because DOW failed to prevail on most
issues, we decline its request for costs and attorney fees under A.R.S. § 12-
348. See Aqua Mgmt., Inc. v. Abdeen, 224 Ariz. 91, 96–97, ¶ 23 (App. 2010)
(awarding attorney fees to party who prevailed on majority of issues). And
given DOW’s failure to prevail on most issues, we exercise our discretion
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Opinion of the Court
to decline its request for attorney fees under the private attorney general
doctrine. See Arnold, 160 Ariz. at 609. We decline to award costs under
A.R.S. § 12-341 because DOW prevailed only in small part.
CONCLUSION
¶102 We affirm ANSAC’s determination for all segments of the
Verde and the Salt and for segment 1 through 7 of the Gila. We reverse
ANSAC’s determination for segment 8 of the Gila and hold segment 8 of
the Gila was navigable at statehood.
AMY M. WOOD • Clerk of the Court
FILED: AA
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