High court won't wade into Salt River ownership fight
The U.S. Supreme Court on Monday declined to consider an appeal in a 26-year battle over who holds title to the Lower Salt River, the state or private landowners.
The action lets stand a 2010 Arizona Court of Appeals ruling that said the Arizona Navigable Stream Adjudication Commission (ANSAC) erred when it determined the riverbed was not navigable at the time of statehood, and thus did not belong to the state.
The Salt River Project and other groups, including homebuilders, tribes and mining companies, had asked the U.S. Supreme Court to review the Arizona Supreme Court's February refusal to consider the case. But the federal appeal was filed 91 days after the state court ruling — one day past the deadline to file.
"They could have given us one day," said Curtis A. Jennings, a lawyer for ANSAC, the council created in 1992 to determine which riverbeds were navigable as of statehood. "We also thought the Arizona Supreme Court would take it too, but they didn't want to hear it."
The confusion over the filing date stemmed from the fact that the state's high court informed the parties through a letter the day after its ruling, leading the Salt River Project to file 91 days after the actual ruling, said Tim Hogan, a lawyer from the Arizona Center for Law in the Public Interest. His group opposed the ANSAC appeal.
The Lower Salt River decision will affect five similar cases now on hold, said George Mehnert, an administrator for ANSAC. The Upper Salt River, Verde, Santa Cruz, San Pedro and Gila River cases are awaiting the Lower Salt River case final decision.
ANSAC has held repeatedly that the Lower Salt River is not naturally navigable but is unnavigable and erratic, and so far the titles have remained in the hands of private landowners flanking the river. But if the river is determined navigable, the titles will be handed over to Arizona, leaving it to the state to decide how to serve the public interest.
The property owners are not the only ones who hold a stake in this lengthy, complicated case. Businesses with operations in and around the city, environmental groups and even Sky Harbor Airport, which is built in the middle of the riverbed, will be affected by the final outcome, said Scott Harelson, a Salt River Project spokesman.
While rivers like the Mississippi are easy for ships to navigate and move commercial goods, streams in Arizona are dry most of the time, except during the flooding seasons, Jennings said. Sand and gravel can be mined in these areas, and is a very valuable asset in the construction industry, he said.
"You have a total of 5.5 million people in Arizona, and 4 million of them live along the Salt and the Gila Rivers in the Valley, so it affects an awful lot of people," said Jennings. "Nobody thought of this…. No one considered the liabilities of encroachment on the state's land."
The latest ANSAC ruling, from 2005, was overturned by the Court of Appeals, which said the commission looked at the wrong time frame when trying to determine if the river was naturally navigable.
At statehood, the river had already been altered by dams and irrigation canals, the court said. A better picture of its natural state would have been sometime in the 19th century, after early Hohokam influences had disappeared but before modern settlement had moved in, said the court, which ordered the commission to reconsider the evidence.
"It's not a huge setback by any stretch of the imagination," said Harelson. "We are confident that some of the work that is done already considers the Lower Salt River prior to diversion."
Other states like Montana have similar cases pending, and lots of Western states should be concerned how these cases turn out since so many of them have claimed ownership of rivers for the building of dams, Jennings said. If rivers are declared navigable, the state would be able to sue builders of dams and electric power plants for damages.
If other states are a guide, the Arizona dispute can be expected to continue. Jennings said a Wisconsin lawyer told him a similar fight in that state had been going on "for 150 years… Your grandchildren are going to be dealing with this… You'll never finish it in your lifetime."
He said the commission would keep studying the issue.
"You're tempted to go back and say (to the courts), 'We told you last time and are telling you again,'" Jennings said. "But you have to be careful, you can't be snippy with them, courts don't like that."