Defenders of Wildlife v. Hull ( 2001 )

THOMPSON, Judge,

concurring in part, dissenting in part.

¶ 68 I agree with the majority’s holding that S.B. 1126 does not provide for the kind of “particularized assessment” of Arizona’s equal footing claims that we required in Arizona Center for Law in the Public Interest v. Hassell, 172 Ariz. 356, 371, 837 P.2d 158, 173 (App.1991), primarily because the navigability standards employed in the legislation are not consistent with federal standards. However, I caution that, beyond this holding, which comes down directly from our decision in Hassell, we have declined to go further. And because no significant public right has yet been vindicated by this litigation, I would not award fees under the private attorney general doctrine, and therefore I dissent from the last part of the opinion.

¶ 69 We have looked to Illinois Cent. R.R. Co. v. Illinois, 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018 (1892), for its classic statement of the equal footing doctrine pursuant to which Arizona’s navigable watercourses passed to a trust for the public benefit. However, such watercourses, once identified, would then be subject to conservation or disposition pursuant to our own state jurisprudence. Hassell, 172 Ariz. at 365, 837 P.2d at 167.. And before we may conclude that Arizona “has a recognized public trust interest in its watercourse bedlands, it must first be determined whether the land was acquired through the equal footing doctrine.” (Majority op. at ¶ 13.) Because we have no proper inventory of navigable watercourses before us, we have not determined whether any Arizona land belongs to the state in trust. And if we are in the future asked to evaluate a legislative grant of such trust lands, we will do so according to state law, and not pursuant to federal doctrines such as are set forth in dicta in the Illinois Central case.

¶ 70 An example of loose language in Illinois Central that we cannot apply concerns the discussion of trust purposes:

the people of each state ... hold the absolute right to all their navigable waters, and the soils under them, for their own common use.... The sovereign power itself ... cannot ... make a direct and absolute grant of the waters of the state, divesting all the citizens of their common right.

146 U.S. at 455,13 S.Ct. 110 (internal citation omitted). Such statements concern “eastern riparian doctrine states ... rather than ... arid appropriation doctrine states____” Douglas L. Grant, Wesiera Water Rights and the Public Trust Doctrine: Some Realism About the Takings Issue, 27 Ariz. St. L.J. 423, 456 (1995). They can have no rational application in states such as Arizona where water rights are acquired by individuals pursuant to the law of prior appropriation. See Ariz. Const. Art. XVII §§ 1 (common law doctrine of riparian water rights has no force or effect in Arizona), 2 (water rights based on “beneficial use” confirmed); A.R.S. § 45-141(A) (state waters belong to the public and are subject to appropriation and beneficial use).

¶ 71 While A.R.S. § 45-141(A) has not, apparently, been the subject of judicial interpretation, a nearly identical provision in Colorado is “primarily intended to preserve the historical appropriation system of water rights upon which the irrigation economy ... was founded, rather than to assure public access to waters for purposes other than appropriation.” Colorado v. Emmert, 198 Colo. 137, 597 P.2d 1025, 1028 (1979). Thus, private ownership and exploitation of equal footing watercourses would not necessarily violate the public trust doctrine, notwithstanding dicta to the contrary in the Illinois Central case and elsewhere. We recognized this in Hassell, when we noted that the United States Supreme Court had not held “that equal footing lands were entirely inalienable.” 172 Ariz. at 365, 837 P.2d at 167. Rather, public trust resources may be disposed of if such disposition is consistent with the “public interest in the lands and waters remaining.” Id. (quoting Illinois Central, 146 U.S. at 453,13 S.Ct. 110).

¶ 72 Therefore, we cannot presume that, once equal footing lands are properly identified, inventoried, and valued, they eannot be alienated through legislative grant for the public purposes involved in the legislation at issue. It is not a foregone conclusion that lands underlying “streams” that were navigable at the time of statehood but now contain little or no surface water could not be granted to private owners as this legislation seeks to do. “Although there were several rivers that were potentially ‘navigable’ at the time of statehood, many of these watercourses have since become dry riverbeds due to the extensive damming, irrigation, and diversion projects that channel Arizona’s water resources to its sprawling desert cities.” Tracey Dickman Zobenica, The Public Trust Doctrine in Arizona’s Streambeds, 38 Ariz. L.Rev. 1053, 1059 (1996). We have already remarked that “land once invested with the public trust may have undergone such changes over time that it is no longer suitable for public trust purposes.” Hassell, 172 Ariz. at 368, 837 P.2d at 170 (citation omitted). And public trust purposes in arid Arizona must differ significantly from those which pertain in riparian states such as Illinois and New Jersey (the latter said to be for navigation, commerce, and fishing, according to Illinois Central; see Hassell, 172 Ariz. at 364, 837 P.2d at 166). Indeed, public trust purposes in Arizona would seemingly include private appropriation and exploitation. See “strict” reading of Illinois Central in Grant, 27 Ariz. St. L.J. at 456.

¶ 73 The bottom line is that we have not yet determined whether there are equal footing watercourses in Arizona, nor have we decided to what purposes such watercourses may be put. The status quo of uncertainty, which this legislation has attempted to resolve, is restored. No title to Arizona streambeds has been quieted in this litigation; no public right has been resolved or vindicated. Hence, I would not award fees to appellants.