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Janet L. Miller (Bar No. 011963) Nicole D. Klobas (Bar No.
021350) Arizona Department of Water Resources 3550 N. Central
Avenue Phoenix, Arizona 85012 Telephone: (602) 771-8472 Fax: (602)
771-8686 [email protected] [email protected]
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of the Department of Water Resources’ Denial of
Mohave County’s Objections to Freeport Mineral Corporation’s
Applications to Sever and Transfer Certain Water Rights Appurtenant
to Land Located Within Planet Ranch and Lincoln Ranch along the
Bill Williams River
Docket No. 14A-SW001-DWR ARIZONA DEPARTMENT OF WATER RESOURCES’
RESPONSE BRIEF Hon. Tammy Eigenheer Administrative Law Judge
Pursuant to Case Management Order No. 5, the Arizona Department
of Water
Resources (“ADWR”) files this brief in response to the arguments
raised by the Mohave
County Board of Directors (“Mohave County”) in its opening
brief. Mohave County did
not establish that it is entitled to relief in this matter. I.
MOHAVE COUNTY CONCEDES THAT ITS OBJECTION TO
FREEPORT’S SEVER AND TRANSFER APPLICATIONS DOES NOT SATISFY THE
REQUIREMENTS OF A.R.S. § 45-172(A)(2) (ISSUE 1).
mailto:[email protected]:[email protected]
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On August 4, 2014, ADWR filed a Notice of Hearing that
identified four issues for
hearing. The first issue, set forth below, concerns whether
Mohave County’s objection
complied with A.R.S. § 45-172(A)(2). ISSUE 1. Whether Mohave
County raised a proper objection based on A.R.S. § 45-172(A)(2),
where Mohave County failed to allege that it holds vested or
existing water rights that would be affected, infringed upon or
interfered with if the Sever and Transfer Applications1 were
granted.
Mohave County has conceded this issue.
Pursuant to A.R.S. § 45-172(A)(2), the “[v]ested or existing
rights to the use of
water shall not be affected, infringed upon nor interfered with”
by the severance and
transfer of a water right. Mohave County admits that it does not
have a water right in the
Bill Williams watershed where the water rights subject to
Freeport’s sever and transfer
applications are located. If, as ADWR contends, the requirements
of subsection 45-
172(A)(2) must be alleged, Mohave County concedes that “ADWR
correctly denied
Mohave County’s objection because Mohave County does not have a
water right in the
Bill Williams watershed.”2 II. MOHAVE COUNTY DOES NOT HAVE
STANDING UNDER A.R.S. § 45-172(A)(2) TO OBJECT TO FREEPORT’S SEVER
AND TRANSFER APPLICATIONS DUE TO IMPACTS ON THE VESTED OR EXISTING
WATER RIGHTS OF OTHERS (ISSUE 2).
The second issue noticed for hearing concerns whether Mohave
County has
standing to raise an objection under A.R.S. § 45-172(A)(2) on
behalf of others. This issue
is described as follows:
ISSUE 2. Whether Mohave County has standing under A.R.S. §
45-172(A)(2) to object to the Sever and Transfer applications on
the grounds
1 This is a reference to Freeport’s sever and transfer
applications. See ADWR’s Opening Brief at pp. 1-2. 2 Mohave
County’s Opening Brief at p. 4, ll. 2-4.
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that granting the Sever and Transfer Applications would
allegedly affect, infringe upon or interfere with the vested or
existing water rights of others.
Mohave County clearly does not have standing under A.R.S. §
45-172(A)(2) for two
reasons. First, although Mohave County alleges that there would
be negative impacts on
water supplies in the area, Mohave County fails to assert that
the vested or existing water
rights of others would be affected, infringed upon or interfered
with if Freeport’s sever
and transfer applications were granted. Second, even if Mohave
County had made such
an assertion concerning the water rights of others, Mohave
County would not have had
standing to do so because Mohave County did not allege a
distinct and palpable injury to
itself. See Seven Springs Ranch, Inc. v. State, 156 Ariz. 471,
475, 753 P.2d 161, 165
(Ariz. App. 1987) (where ranchers’ leases with the state were
not an issue in the case,
ranchers lacked standing to present constitutional arguments on
behalf of the school trust
lands in Arizona).3
In its notice of appeal and opening brief, Mohave County
contends that it has
standing because it is an “interested person” as that term is
used in subsection 45-
172(A)(7). In support of this contention, Mohave County refers
to other subsections of
A.R.S. § 45-172(A), which Mohave County characterizes as
requiring “a clear and
straightforward nexus to the water right that is to be severed
and transferred.”4
Nonetheless Mohave County then argues that such a requirement is
not part of subsection
45-172(A)(7). Mohave County’s argument is inherently
inconsistent and without legal
support.
In the Yavapai Apache case, the Arizona Court of Appeals
describes well-accepted
rules of statutory construction, including the requirement to
give meaning to every word
3 Also see ADWR’s Opening Brief at 7-9, and cases cited therein.
4 Mohave County’s Opening Brief at p. 5, ll. 15-16.
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used in a statute.5 Contrary to those rules, Mohave County’s
argument fails to give
meaning to the word “interested” in subsection 45-172(A)(7),
even though Mohave
County admits that other provisions of A.R.S. § 45-172 are based
on an “interest” in the
water right to be severed and transferred.6 See subsections
45-172(A)(2) through (A)(6).
Mohave County argues that any “interested” person may file an
objection but fails to give
meaning to the word “interested.” As defined in Black’s Law
Dictionary, an “interested
person” is, “A person having a property right in or claim
against a thing, such as a trust or
decedent’s estate.”7 In this case, using the words of Mohave
County, ADWR submits that
an interested person is one having “a clear and straightforward
nexus to the water right
that is to be severed and transferred,” as described in
subsections 45-172(A)(2) through
(6). Mohave County has not alleged that it has such an
interest.
Mohave County argues that it is an interested person, however,
because subsection
45-172(A)(7) does not restrict the filing of an objection to
certain grounds as do other
statutes, which Mohave County lists in a footnote.8 These
statutes are not instructive.
As stated by the Court of Appeals in the Yavapai Apache case, “a
statute should be
construed in conjunction with other statutes that relate to the
same subject or purpose.”9
(Emphasis added.) The statutes noted by Mohave County do not
relate to the same
subject or purpose as the severance and transfer of vested or
existing surface water rights,
but rather to matters related to groundwater management, and
underground water storage,
savings and replenishment. The language of A.R.S. § 45-172(A)
itself provides a basis
5 Yavapai Apache Nation v. Sandra Fabritz-Whitney, 227 Ariz.
499, 504, 260 P.3d 299, 304, ¶ 20 (Ariz. App. 2011), cited in
ADWR’s Opening Brief at p. 9. 6 Mohave County’s Opening Brief at p.
5. 7 Black’s Law Dictionary 1178 (8th ed. 2004). 8 Mohave County’s
Opening Brief at p. 6, n. 10. 9 n. 4, supra.
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for proper construction of A.R.S. § 45-172(A)(7), not the
unrelated statutes relied upon by
Mohave County.
Mohave County further maintains that “standing is not a
requirement for
challenging an action under Arizona law.”10 In support of this
position, Mohave County
cites the B Bar Enterprises case.11 Mohave County’s citation to
this case is misleading.
Although the Arizona Supreme Court in that case noted that
Arizona does not have a case
or controversy provision in its constitution, the Court
nonetheless recognized that there is
a standing requirement in Arizona. The Court stated:12 In order
to possess standing to assert a constitutional challenge, an
individual must himself have suffered ‘some threatened or actual
injury resulting from the putatively illegal action.’
As required by the Arizona Supreme Court in this case, Mohave
County itself must
demonstrate that it would suffer a threatened or actual injury
from Freeport’s sever and
transfer applications, which it has not done. Accord Bennett v.
Napolitano, 206 Ariz. 520,
81 P.3d 311 (Ariz. 2003); Sears v. Hull, 192 Ariz. 65, 961 P.2d
1013 (Ariz. 1998).13
Without question, Mohave County did not have standing to file an
objection in this matter. III. ADWR DOES NOT HAVE AUTHORITY UNDER
A.R.S. § 45-172 TO DENY FREEPORT’S SEVER AND TRANSFER APPLICATIONS
ON PUBLIC INTEREST GROUNDS (ISSUES 3 AND 4).
There are two issues noticed for hearing that relate to whether
ADWR has
authority under A.R.S. § 45-172 to deny Freeport’s sever and
transfer applications on
public interest grounds. These two issues are described as
follows:
10 n. 6, supra. 11 State v. B Bar Enterprises, Inc., 133 Ariz.
99, 649 P.2d 978 (Ariz. 1982). 12 133 Ariz. at 101, 649 P.2d at
980. 13 These cases were cited by ADWR in its Opening Brief at pp.
7-8.
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ISSUE 3. Whether the Department has authority under A.R.S. §
45-172 to deny the Sever and Transfer Applications on the grounds
that granting the Sever and Transfer Applications allegedly would
result in a negative effect on water supplies in the area,
including the Big Sandy Aquifer, riparian areas and flows to the
Colorado River, contrary to the public interest. ISSUE 4. Whether
the Department has authority under A.R.S. § 45-172 to deny the
Sever and Transfer Applications on the grounds that granting the
Sever and Transfer Applications allegedly would result in an
increased tax burden on county taxpayers.
Mohave County contends that ADWR has authority to deny an
application filed
under A.R.S. § 45-172 on public interest grounds because those
grounds are required
under A.R.S. § 45-153(A). These statutes are not related to the
same subject matter, and
the one does not inform the other. A.R.S. § 45-172 concerns
applications for the
severance and transfer of vested or existing water rights to a
different place of use, and for
a different purpose. On the other hand, A.R.S. § 45-153(A)
concerns applications for a
permit to appropriate surface water, which is not a vested or
existing water right. A
permit to appropriate surface water provides authority for the
permit holder to put water to
beneficial use, after which a certificate of water right may be
issued upon proof of
appropriation. A.R.S. §§ 45-158 and 162(A). Because subsections
45-153(A) and 45-172
do not relate to the same subject or purpose, they should not be
construed together. See
Yavapai Apache, supra.14
In addition, it is clear that the legislature intended that the
requirements of
subsection 45-153 and subsection 45-172 be different. Under
A.R.S. § 45-153(A), in
order to obtain a permit to appropriate surface water, the
application must be in proper
form and seek to appropriate water for a beneficial use, “but
when the application or the
proposed use conflicts with vested rights, is a menace to public
safety, or is against the
interest and welfare of the public, the application shall be
rejected.” The legislature only 14 n. 4, supra.
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included one of these requirements in A.R.S. § 45-172(A)(2);
namely, that “vested or
existing rights to the use of water shall not be affected,
infringed upon nor interfered
with.” The legislature did not require ADWR to determine whether
a sever and transfer
application would be a menace to public safety or against the
interests and welfare of the
public. Although it could have done so, the legislature did not
include these public safety
and public interest requirements in A.R.S. § 45-172(A). Under
the principle of expressio
unius est exclusio alterius, when a term is used in one statute
but not in another one, the
missing term may not be read into the statute where it is
omitted. Pima County v.
Heinfeld, 134 Ariz. 133, 134, 654 P.2d 281, 282 (Ariz. 1982)
(“[a] well established rule of
statutory construction provides that the expression of one or
more items of a class
indicates an intent to exclude all items of the same class which
are not expressed.”);
Goulder v. Arizona Dep’t of Transportation, 177 Ariz. 414, 416,
868 P.2d 997, 999 (Ariz.
App. 1993)(“A recognized rule of statutory construction holds
that an expression of one or
more items of a class indicates the intent of the legislature to
exclude all items of the same
class not included.”). Here, the legislative intent is clear.
The public safety and public
interest requirements of subsection 45-153(A) are not and cannot
be included in
subsection 45-172.
This interpretation is further supported by the legislative
history of A.R.S. §§ 45-
153 and 172, which may be properly considered. Goulder, supra.
The predecessor of
subsection 45-153(A) is found in Section 7 of the 1919 Public
Water Code, and it is
virtually the same now as it was then.15 The predecessor of
A.R.S. § 45-172 is found in
Section 48 of the 1919 Public Water Code, and similar to current
law, it authorized the
sever and transfer of water rights “if such change can be made
without detriment to
existing rights.”16 This statute remained virtually unchanged
until 1962, when the 15 Laws 1919, Ch. 164, § 7. 16 Id. at §
48.
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legislature first adopted A.R.S. § 45-172,17 which included the
same conditions as those
currently set forth in subsections 45-173(A)(1) through (A)(6).
At no time during the
legislative history of A.R.S. §§ 45-153 and 172, spanning almost
100 years, did the
legislature include the public safety and public interest
requirements of subsection 45-
153(A) in subsection 45-172.18
Regardless, Mohave County contends that ADWR should have
considered the
public safety and public interest requirements of A.R.S. §
45-153(A) during its review of
Freeport’s sever and transfer applications, but cites no
authority for this proposition.
Instead, Mohave County describes what it believes to be public
policy reasons for doing
so. However, that is the province of the legislature, which by
statute determines the
requirements that an agency must follow. Here, ADWR may only
impose those
requirements identified by A.R.S. § 45-172(A). See A.R.S. §
41-1030(B).19 Furthermore,
it is up to the legislature to create additional requirements,
if it so desires, not the
judiciary. Newman v. Cornerstone Nat’l Ins. Co., 322 P.3d 194,
196, ¶ 6 (Ariz. App.
2014).20
For the first time, in its opening brief Mohave County argues
that ADWR’s failure
to impose a public interest requirement on a sever and transfer
application violates the
public trust doctrine. Mohave County did not include this
argument in its objection, and
is therefore prevented from raising it on appeal. See A.R.S. §
41-1092.03(B), which states
in part:
17 Laws 1921, Ch. 64, § 21; Rev. Code 1928, § 3314; Code 1939, §
75-135; Laws 1962, Ch. 113, § 5. 18 Copies of the session laws
cited in this paragraph are found in the Appendix to this brief. 19
ADWR Opening Brief at pp. 6, 10. 20 Id. at 10.
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A notice of appeal or request for a hearing also may be filed by
a party who will be adversely affected by the appealable agency
action or contested case and who exercised any right provided by
law to comment on the action being appealed or contested, provided
that the grounds for the notice of appeal or request for a hearing
are limited to the issues raised in that party’s comments.
(Emphasis added.) Under the clear language of this statute,
because the public trust issue
now being presented to the ALJ was not included in Mohave
County’s objection, it cannot
be considered. Furthermore, Mohave County did not provide any
legal authority to
support its position.21
The public trust doctrine applies to lands held in state
ownership under waterways
determined to be navigable at the time of statehood. Defenders
of Wildlife v. Hull, 199
Ariz. 411, 416, 18 P.3d 722, 727, ¶ 12 (Ariz. App. 2001). Mohave
County appears to
contend that the public trust doctrine should nonetheless be
applied to Freeport’s sever
and transfer applications without addressing the fact that none
of the watercourses in
Mohave County were navigable at the time of statehood. Without
such a finding of
navigability at the time of statehood, the public trust doctrine
does not apply.
At the time of Arizona’s statehood, Arizona “acquired title to
the lands below high-
water mark in all navigable watercourses within its boundaries.”
Arizona Center for Law
in the Public Interest v. Hassell, 172 Ariz. 356, 360, 837 P.2d
158, 162 (Ariz. App. 1991)
(emphasis added). The Arizona Navigable Stream Adjudication
Commission (“ANSAC”)
is responsible for determining whether watercourses in the state
were navigable at the
21 Mohave County cited two unpublished decisions, inter alia,
which ADWR is moving to strike concurrently with the filing of this
brief. In addition, adding requirements to existing statutes under
the “auspices of the Public Trust Doctrine” as proposed by Mohave
County was explicitly rejected in Seven Springs, supra (the drawing
of groundwater basin and sub-basin boundaries by statutory
definitions in the Groundwater Management Act, which must be
followed. 156 Ariz. 471, 475-76, 753 P.2d 161, 165-66.
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time of statehood. Proceedings before ANSAC are governed by
A.R.S. §§ 37-1101 et
seq. Under A.R.S. § 37-1101(8), public trust land is defined as
follows: “Public trust land” means the portion of the bed of a
watercourse that is located in this state and that is determined to
have been a navigable watercourse as of February 14, 1912. Public
trust land does not include land held by this state pursuant to any
other trust.
(Emphasis added.) Pursuant to A.R.S. § 37-1130(A), a
determination by ANSAC that a
watercourse is non-navigable “constitutes a waiver,
relinquishment and disclaimer of this
state’s right, title or interest in the bed of the watercourse
based on its navigability.”
(Emphasis added.)
This case involves watercourses in Mohave County, which ANSAC
has
determined to be non-navigable. ANSAC’s reports indicate that
all minor watercourses
within Mohave County, and the five major watercourses consisting
of the Bill Williams
River, Big Sandy River, Santa Maria River, Virgin River and
Burro Creek are non-
navigable.22 As a result, the state has no “right, title or
interest” in the beds of those
watercourses and the public trust doctrine does not apply.
Mohave County’s arguments
cannot stand.
IV. CONCLUSION
For the foregoing reasons, Maricopa County’s objection should be
denied and its
appeal dismissed.
/
/
/
/
22 The list of ANSAC’s reports are included in the Appendix to
this brief. See www.ansac.gov.
http://www.ansac.gov/
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RESPECTFULLY SUBMITTED this 26th day of September, 2014. ARIZONA
DEPARTMENT OF
WATER RESOURCES /s/ Janet L. Miller Janet L. Miller, Deputy
Counsel Nicole D. Klobas, Deputy Counsel Electronically filed and
served via https://portal.azoah.com/oedf this 26th day of
September, 2014 /s/ Sharon Scantlebury
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Docket No. 14A-SW001-DWR ADWR Response Brief
September 26, 2014
APPENDIX
(1) Laws 1919, Ch. 164, §§ 7, 48 (2) Laws 1921, Ch. 64, § 21 (3)
Rev. Code 1928, § 3314 (4) Code 1939, § 75-135 (5) Laws 1962, Ch.
113, § 5 (6) ANSAC Status Reports
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t;
~/)
l ' "!- /
r ?
r
PERiiANENT FILE COPY , I
WATER CODE OF THE
State of Arizona CHAPTER 164
REGULAR SESSION
FOURTH LEGISLATURE OF THE
State of Arizona
1919
lf I !
( \
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280 LAWS OF ARIZONA
papers, maps, plans and other instruments issued from his
office.
Section 5.. Any person, association or corporation,
munici-pality or the State of Arizona or the United States of
America hereafter intending to acquire the right to the beneficial
use of any waters shall, before commencing the construction,
en-largement or extension of any dam, ditch, canal or other
dis-tributing or controlling works, or performing any work in
connection with said construction, or proposed appropriation, make
an application to the Commissioner for a permit to make such
appropriation.
Section 6. Each application for a permit to appropriate water
shall set forth the name and postoffice address of the applicant,
the source of water supply, the nature and amount of the proposed
use, the location and description of the pro-posed ditch, canal, or
other work; the time within which it is proposed to begin
construction, the time required for the completion of the
construction, and the time for the com-plete application of the
water to the proposed use. If for agricultural purposes, it shall
give the legal subdivisions of the land and the acreage to be
irrigated as near as may be .. If for power purposes, it shall give
the nature of the works by means of which the power is to be
developed, the pressure head and amount of water to be utilized,
the points of diver-sion and release of the water, and the uses to
which the power is to be applied. If for the construction of a
reservoir, it shall give the height of dam, the capacity of the
reservoir, and the t:ses to be made of the impounded waters.. If
for municipal water supply, it shall give the present population to
be.served, and, as near as may be the future requirements of the
city. If for mining purposes, it shall give the location and the
na-ture of the mines to be served, and the methods of supplying and
utilizing the waters All applications shall be accom-panied by such
maps and drawings, and such other data as may hereafter be
prescribed by the Commissioner, and such accompanying data shall be
considered as a part of the ap-plication
Section 7. Upon receipt of an application, it shall be the duty
of the Commissioner to make an endorsement thereon of the date of
its receipt and to keep a record of the same.. If upon 'examination
the application is found to be defective it shall be returned for·
correction or completion, and the date of and reasons for the
return thereof shall be endorsed there-on and made of record in his
office No application shall lose
J !
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LAWS OF ARIZONA 281
its priority of filing on account of such defects, provided
ac-ceptable maps and drawings and data are filed in the office of
the Commissioner within sixty days from the date of said return to
the applicant All applications which shall coinply with the
provisions of this act shall be recorded in a suitable book kept
for that purpose, al}d it shall be the duty of the Commissioner to
approve all applications made in proper form which contemplate the
application of water to a bene-ficial use, when the provisions of
this act are complied with; but when the proposed use conflicts
with vested r·ights, or is a menace to the safety or against the
interests and welfare of the public, the application< shall be
rejected.
An application may be approved for a less amount of water than
that applied for, if there exists substantial reasons there-for,
and in any event shall not be approved for more water than can be
applied to a beneficial use.. Applications for municipal water
supplies may be approved to the exclusion of all subsequent
appropriations, if the exigencies of the case de-mand, upon
consideration and order by the Commissioner. As between two or more
conflicting applications under considera-· tion of the Commissioner
at the same time, for the use of any \~ aterfrom a given stream,
lake, or other source of water sup-ply where the capacity of the
supply is not sufficient for all applications and for which no
permit has been granted, pref-erence shall be given by the
Commissioner according to the relative values to the public of the
proposed uses to which the water is supplied The said relative
values to the public shall be taken by the Commissioner for this
purpose in the following order of importance:
First: Domestic and municipal uses.
Domestic use shall be construed to include gardens not exceeding
;0 acre to each family
Second: Irrigation and stock watering
Third. \lV ater power and mining uses.
Section 8 The approval or rejection of an application shall be
endorsed thereon, and a record made of such endorsement in the
Commissioner's office The application so endorsed shall be returned
immediately to the applicant in person or by mail. If approved, the
applicant shall be authorized, on receipt thereof, to proceed with
the construction of the neces-sary works and to take all steps
required to apply the water to a beneficial use, and to perfect the
proposed appropriation. lf the application is refused, the
applicant shall take no steps
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296 LAWS OF ARIZONA
intendent of the district in which said ditch or reservoir is
located, by written notice, setting forth such facts, asking the
water superintendent to regulate such ditch or reservoir for the
purpose of making a just division or distribution of water from the
same to the parties entitled to the use thereof. The judge of any
Superior Court may also direct the water super-intendent of the
district to take charge of and enforce any de-cree relative to
water rights made under the jurisdiction of said Court pending a
determination of all the water rights of the watershed Upon
receiving such order, the said water superintendent shall regulate
such ditch or reservoir for the purpose of dividing or distributing
the water therefrom in accordance with the established rights
continuing the said work until the necessity therefor shall cease
to exist. Said rights shall be deemed to have been established when
the same have been determined by the Commissioner, by any decree of
any Superior Court of this State or by contract or other written
agreement ·
Section 46 To bring about a more economical use of the available
water supply, it shall be lawful for water users own-uig lands
which have attached water rights, to rotate in the use of supply to
which they may be collectively entitled, and when-ever two or mpre
water users shall notify the water superin-tendent that they desire
to use the water by rotation and shall present a written agreement
as to the manner of such rotation, the water superintendent shall
distribute the water in accord-ance with such written agreement
Section 47. In suits for injunction affecting the use of water
from streams upon which the rights to use water have been
determined, no restraining order shall be granted before hearing
had after at least ten days' notice thereof served upon all persons
defendant All suits for injunction involving the use of water shall
be heard, either in term time or during vaca-tion, not later than
fifteen days after issues joined, unless for good cause shown
further time be allowed.
Section 48. All water used in this State for irrigation
pur-poses shall remain appurtenant to the land upon which it is
used; provided, that if for any natural cause beyond control of the
owners it should at any time become impracticable to be
beneficially or economically use water for irrigation of any hnd to
which water is appurtenant, said right may be severed from said
land, and simultaneously transferred and become, appurtenant to
other land, without losing priority of right theretofore
established, if such change can be .made without
'
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4
l I
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LAWS OF ARIZONA 297
detriment to existing rights, on the approval of an application
of the owner to the Commissioner. Before the approval of such
transfer an inspection shall be made by the Commissioner or persons
deputized by him, and the Commissioner shall approve or disapprove
such transfer and prescribe the con-ditions therefor. Such order
shall be subject to appeal as in this act provided
Section 49.. The unauthorized use of water to which an-other
person is entitled, or the unauthorized diversion of water from a
stream, or the wilful waste of water to the detriment of another,
or the diversion of a stream to the injury or threat-ened injury of
the lands of another shall be a misdemean0r
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I
J
. '
A'RlZONA CODE 1939
Containing the
GENERAL LAWS OF ARIZONA
ANNOTATED
Published by Authority of Laws 1939, chapter 89
Compiled under the Supervision of the Members of the Supreme
Court of Arizona
Chief Justice ·Henry D Ross
Associate Justices Alfred C Lockwood Archibald G McAlister
IN SIX VOLUMES
VOLUME FIVE
Indianapolis THE BOBBS-MERRILL COMPANY
Publishers r-------=:....:.:....:.
Nl::ll~::':i\
+J :-:·~ s nc:~:::,v·~r>
·. ·~·,... ' -.
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. I '
:1
75-135 WATER CODE--IRRIGATION AND OTHER DISTRICTS 792
the superintendent shall distribute the water in accordance with
such agreement. [Laws 1919, ch. 164, §§ 45, 46, p. 278; cons. &
rev., R. C. 1928, § 3313.]
Comparative Legislation. Dispute among water users:
Ore. Code 1930, § 47-707.
75-135. Water to remain appurtenant to land-Transfer of right
where not practicable to continue use.-Water used for irrigation
pur-poses shall remain a right appurtenant to the land upon which
it is used; if, however, at any time for any natural cause beyond
control of the owner it becomes impracticable to beneficially or
economically use the water for irrigation of the land to which it
is appurtenant, the right may, with the approval of the
commissioner, be severed .from the land, and simultaneously
transferred and become appurtenant to other land without losing
priority theretofore established, if such change can be made
without detriment to existing rights. Before the approval of such
transfer an inspection shall be made by the commissioner and he
shall approve or disapprove such transfer and prescribe the
conditions therefore. [Laws 1919, ch. 164, § 48, p. 278; 1921, ch·.
64, § 21, p. 118; rev., R. C. 1928, § 3314.]
Comparative Legislation. rights:
Ore. Code 1930, § 47-712.
Water-
NOTES TO DECISIONS
ANALYSIS
Appurtenant to, but not inseparable from, land.
Change in use. Construction of Oregon statute. Detached tract
owned by same person. Lessor and lessee. Priority. Purpose of
requirements. Right of transfer. Title or interest-Intent to
appropriate. Transfer of right-Party claimant.
Appurtenant to, But Not Inseparable from, Land. Water for
irrigation purpose is ap-
purtenant to the land for which it is appropriated and applied.
It does not follow, however, that the water-right can not be
conveyed and separated from the land or lost to the owner by a
failure to comply with the conditions under which he is entitled to
use the water. In an irrigation district the land with a
water-right· may be sold for delinquent
. assessments. A change in the place of use should be made in a
regular way which the decree permits. In other words, the
water-right is appurtenant to, but not inseparable from, the land.
In re Water-Rights of Deschutes River, 134 Ore. 623, 286 Pac. 563,
294 Pac. 1049.
Change in Use. Under the statute, it is a condition
precedent to the exercise of the right to change the place of
the use of the water from that specified by the decree in a
proceeding for the adjudication of water-rights that the owner of
such right make application to the state engineer and ob-tain his
approval of such change. Broughton v. Stricklin, 146 Ore. 259, 28
Pac. (2d) 219, 30 Pac. (2d) 332.
Company owning water-right can not by contract or any other
arrangement with water users above, on river, author-ize such upper
water users to divert the water awarded to the company for power
purposes, a nonconsuming use, and thereby deprive lower users of
such, water. Broughton v. Stricklin, 146 Ore. 259, 28 Pac. (2d)
219, 30 Pac. (2d) 332.
The point of diversion of water can not be changed if thereby
the rights of others are prejudiced. Broughton d). Stricklin, 146
Ore. 259, 28 Pac. (2 219, 30 Pac. (2d) 332; Hutchinson d).
Stricklin, 146 Ore. 285, 28 Pac. (2 225 .
Proposed arrangement between millibg company and upper
irrigators, where Y the milling c.ompany would refrain from
demanding the use of the water it was entitled to, would result in
a change of the place and character of the use of the
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CH -112
in ;e not be ation provided ,f the amount teaching aids
>ol funds may ;upplementary state board of -1101, and for
because of an God, provided in such quan-ibed by para-
line carefully
1ildren when her within or
ns or papers r.
(,
as it deems
1 as deemed ct.
s or papers a majority
may permit •se. Any ex-vided under be a charge
rovided · the
. . ·-·~· ltfi:;(_.
CH -113 LAWS OF ARIZQN~ 265
7. Construct buildings ac~essory to· the operation of .the
schools within the district
. · .. \ • , , ' .. I,
8. Sell to the state, county or city any school property
re-quired for a public purpose, provided the sale of the property
will not affect the normal operations of a school within the school
district. · ·
Sec. 2. EMERGENCY
To preserve the public peace, health and safety it is neces-sary
that this act become immediately operative. It is therefore
declared to be an emergency measure, to take effect as pro-vided by
law.
Approved by the Governor-March 23, 1962.
Filed in the Office of the Secretary of State-March 23,
1962.
CHAPTER 113
Senate Bill. No. 39
AN ACT
·RELATING TO WATERS; PRESCRIBING RIGHTS OF THE . STATE IN
APPROPRIATION OF WATER; PERMITTING . ·TRANSFER OF WATER RIGHTS
APPURTENANT TO
CROP LAND FOR MUNICIPAL AND RECREATIONAL PURPOSES UNDER CERTAIN
CONDITIONS AND LIMI-TATIONS; USES OF TRANSFERRED WATER RIGHTS;
APPLICATION FOR TRANSFER AND NOTICE; ORDERS OF STATE LAND
COMMSSIONER, FINALITY;.INJUNC-TION; APPEAL, AND AMENDING SECTIONS
45-141, 45-142, 45-147, 45-150 AND 45-172, ARIZONA REVISED
STATUTES. ' ''" ·
Be it enacted by the Legislature of the State of AriZona:
Section 1. Sec. 45-141, Arizona Revi~ed Stat~tes, is amended· to
read: · " •;, · · .. · .,
45-141. RIGHT OF APPROPRIATION; ':PERMITTED USES .~ ; .'·.:~. ,
'
A. Any person or the state of Arizona or a political
subdivi-sion thereof may appropriate unappropriated water for
domes-tic, municipal, irrigation, stock watering, water.:p6wer,
recrea-tion, wildlife, including fish, m~ning uses, for his
personal use
-
CH -113 268 LAWS OF ARIZONA
. Sec. 5. Sec. 45-172, Arizona Revised Statutes, is amended to
read:
45-172. TRANSFER OF WATER RIGHTS; APPLICA-TION; LIMITATIONS;
REQUIRED CONSENT
A water right may be severed from the land to which it is
appurtenant or from the site of its use if for other than
irriga-tion purposes and with the consent and approval of the owner
of such right may be transferred for use for irrigation of
agri-cultural lands or for municipal, stock watering, power and
mining purposes and to the state or its political subdivisions for
use for recreation and wildlife purposes (including fish) without
losing priority theretofore established, subject to the following
limitations and conditions:
1. Except as otherwise provided in this section no such
sever-ance or transfer shall be made unless approved by the
depart-ment, and the approval of the department shall· prescribe
the conditions therefor.
: 2. Vested or eXisting rights· to the use of water shall not be
affected, infringed upon nor interfered with, and in no event shall
the water diverted or used after the transfer of such rights ~xceed
the vested rights existing at the time of such severance and
transfer, and the state land commissioner shall by order so define
and limit the amount of water to be diverted or used annually
su~sequent to such transfer.
3. The water rights soughtto be transferred shall have beeri
lawfully perfected under the laws of the territory or the state of
Arizona and shall not have thereafter been forfeited or
abandoned.
4. No such severance or transfer of water rights shall be
permitted or allowed from lands within the exterior boundaries of
any irrigation district, agricultural improvement district or water
users association without first having obtained the writ-ten
consent and approval of such irrigation district, agricultural
improvement district or water users association.
· 5. No right to the use of water on or from any watershed or
drainage area which supplies or contributes water for the
irri-gation of lands within an irrigation district, agricultural
im-provement district or water users association shall be severed
or transferred without the consent of the governing body of such
irrigation district, agricultural improvement district or water
users association. All proposed applications for the severance and
transfer of a right to use water ofor from any watershed or
drainage area which supplies or contributes water for the ir-
-
CH -113 LAWS OF ARIZONA
... . . ' '/;_ -~.~~_;;~~-~-;.; -·; ~-~, rigation of lands
within ·any irrigation district, agricultural improvement district
or water users association shall be sub-mitted to the governing
body of such irrigation district, agri-cultural improvement
district or. water users association prior to the filing of such
application with .the department. Within forty-five days after the
receipt thereof such governing body shall reject or approve the
proposed application. Failure,, of ~uch goverriiilg body to approve
or -reject the proposed appliCa-tion within forty-five days after
receipt thereof shall. constitute approval of the proposed
application by such governing body. No application for the
severance or transfer of a right to the use of water of or from any
watershed or drainage area which sup-plies or contributes water for
the irrigation of lands within any irrigation district,
agricultural improvement district or water users association shall
be accepted for filing· by ·the department unle~s accompanied by
tpe written consent .of the governing body of such il;'rigation
district, agricultural im-provement district or water users·
association to the. proposed application or by satisfactory
evidence that such governing body failed··to either accept or
reject the ·proposed fipplicatlon within forty-five days after
x:eceipt thereo~ by such gov~g body.. : - . . ~. . ... ;·_ :··.·. .
... · . ., ·.:' :··::-•: ..• : .. . . 6; A, severance ~nd transfer
'of an irrigation ~ater,right·~p.. ptfrteriarit to land$ within the
botiridries of an 'irrigation district to Oilier lands within tp.e
t>ou~aries of the Saine irrigation ·di$J.-trict for agricultural
use may be· accompliShed the E!Xchisiort of l~ndst9 ~hich a
"':ate~::". right is, ~pp~nll.!lt poundries . of an irrigati()n
::diStzic~, ~nd . '4ie !:L .. '"-·'"-W:.'U:~ thereof of 'other
lands within the boundries of ~....._=--""" district: ·such'
severance. and transfer "of ri water quir~ . the :·c9~se.n(.()(
()nly ~e. ir:rlptiQn ~.rict _within the' affectedlands ate
situated.and of the owners atfected by· ·the'severarice and
thinsier. No. . . . .. nor approval by the ·aepartment
Sliaifbe·"'.,.,· .. ,;,,.Arl to·acc~onttplish such severance and
transfer. , • -- -_ . ' ~- -. '{;'_>-."ff' __ ;... --__
·_:,-_:·_~-.:~--~ ·:- _,:-._~'\'-.--:~,'-?:·-· '7. An application
for severancel¢d transfetof:a·wa(erriglit~ sh.all be filed with.
the'·department: The department shall fiX .. ~time and place for a
hearing thereon and·~ :give.n6tice0f such h:earing by publication·
once a week for three StieceSSive weeks m a newspaper of general
cirCulation ~ t1'1.e coimty. ·9r ~unties in which the·watershed or
drabiage_ ·a.rea·is'located. Any interested p~rson may . appear.·
and· sb9w calise ·why:· the proposed ·application for the severance
and transfer- Shall' not be granted. · · ' :::,::; ,,;;a~z .-:"·. '
'•
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1700 W. WashingtonRoom B-54
Phoenix, AZ 85007
Voice 602.542.9214Fax 602.542.9220Cell 602.290.3760
You Are Here: Home > commission reports
ANSAC Determination Final ReportsOne of the Commission's
customer care administrative objectives is to include all
ratified
Commission Reports online on this page on this site. As part of
that objective it is a further goal to include each report online
within 7 working days of each report being adopted by the
Commission
and we are meeting that goal.
Commission Reports
Watercourse Report Issue Date Determination Report in PDF
Agua Fria River Nov 17, 2009 Not Navigable Aqua Fria
River.pdf
Apache Cy S&M Dec 14, 2011 Not Navigable Apache County Small
& Minor.pdfBig Sandy River Apr 28, 2011 Not Navigable Big Sandy
River.pdf
Big Williams Apr 28, 2011 Not Navigable Big Williams.pdfBlue
River Jun 28, 2004 Not Navigable Blueriver.pdfBurro Creek Apr 28,
2011 Not Navigable Burro Creek.pdf
Cochise Cy S&M Dec 16, 2003 Not Navigable Cochise Cy Small
& Minor.pdf
Coconino Cy Small & Minor Apr 28, 2011 Not Navigable
Coconino Cy Small & Minor.pdf
Gila Cy S&M Apr 11, 2007 Not Navigable Gila County Small
& Minor.pdf Gila River Jan 27, 2009 Not Navigable Gila
River.pdf
Graham Cy S&M Jun 28, 2004 Not Navigable Graham County
S&M
Greenlee Cy S&M June 28, 2004 Not Navigable Greenlee Cy
Small & Minor.pdf
Hassayampa River Nov 17, 2009 Not Navigable Hassayampa River.pdf
La Paz Cy S&M Sep 23, 2003 Not Navigable La Paz County
S&M
Little Colorado River (LCR) Nov 17, 2009 Not Navigable Little
Colorado River Lower Salt River Sep 21, 2005 Not Navigable Lower
Salt River
Maricopa Cy S&M Oct 18, 2006 Not Navigable Maricopa County
S&M Mohave Cy S&M Sep 23, 2003 Not Navigable Mohave County
S&M
Navajo CY S&M Dec 14, 2011 Not Navigable Navajo County Small
& Minor.pdf
Pima Cy S&M Nov 17, 2005 Not Navigable Pima Cy Small &
Minor.pdf
Pinal Cy S&M Sep 21, 2005 Not Navigable Pinal Cy Small &
Minor.pdf Puerco River Nov 17, 2009 Not Navigable Puerco River
San Francisco River Jun 28, 2004 Not Navigable San Franscisco
River.pdf San Pedro River Oct 18, 2006 Not Navigable San Pedro
River.pdf
Santa Cruz Cy S&M Dec 16, 2003 Not Navigable Santa Cruz
County S&M Santa Cruz River Oct 18, 2006 Not Navigable Santa
Cruz RiverSanta Maria River Apr 28, 2011 Not Navigable Santa Maria
River.pdf Upper Salt River Dec 13, 2007 Not Navigable Upper Salt
River.pdf
Verde River Mar 24, 2008 Not Navigable Verde River.pdfVirgin
River Jan 27, 2009 Not Navigable Virgin River.pdf
Yavapai Cy S&M Dec 14, 2011 Not Navigable Yavapai County
Small & Minor.pdfYuma Cy S&M Feb 20, 2003 Not Navigable
Yuma County S&M
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Washington Room B-54, Phoenix, Arizona 85007 - All Rights
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9/26/2014http://www.ansac.az.gov/commission_reports.asp
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1700 W. WashingtonRoom B-54
Phoenix, AZ 85007
Voice 602.542.9214Fax 602.542.9220Cell 602.290.3760
You Are Here: Home > status of cases
The Commission receives a number of questions regarding
potential future hearings. The Commission has held more than 150
hearings throughout the state during its various iterations these
past few years.
NOTE: The following table represents hearing dates, etc., from
2001-2005 and does not reflect anything regarding the six remand
cases: the Gila River, Lower Salt River, San Pedro River, Santa
Cruz River, Verde River, and Upper Salt River. The Commission voted
on October 22, 2012 to open the records for receiving new evidence
on all six of the remand cases in two specific areas: (1) Natural
& Ordinary Conditions, and (2) Segmentation. While no hearings
have been scheduled to accept new evidence, it is the intent of the
Commission to complete all hearings by the end of 2013.
(This page was most recently updated August 19, 2013)
CASES LOG(A) Future Planned ANSAC Hearing Dates.
Bold in left column indicates major watercourse.
Watercourse Hearing Date Hearing Location
All Plannerd Watercourse Navigability Evidentiary Hearings have
been completed pending results of cases in Pima County Superior
Court, Maricopa County Superior Court and the Arizona Court of
Appeals.
None Scheduled None Scheduled
(B) ANSAC hearings held.
Bold in left column indicates major watercourse. Post Hearing
Opening Legal Memorandums are due 30 days following completion of
each hearing and the close of receipt of evidence, and Response
Memorandums to the Opening Memorandums are due 20 days following
the end date for Opening Memorandums. Both of these times are
subject to the Commission granting extensions of filing times.
Watercourse Hearing Date Hearing Location
All Small & Minor Watercourses in Yuma County 02-001-NAV
September 23, 2002 Yuma, Arizona
All Small & Minor Watercourses in Mohave County 02-002-NAV
December 9, 2002 Kingman, Arizona
All Small & Minor Watercourses in La Paz County 02-003-NAV
December 10, 2002 Parker, Arizona
Santa Cruz River (Santa Cruz County) 03-002-NAV 1st of 3
Counties March 11, 2003 Nogales, Arizona
All Small & Minor Watercourses in Santa Cruz County
03-001-NAV March 11, 2003 Nogales, Arizona
San Pedro River (Cochise County) 03-004-NAV 1st of 3 Counties
March 12, 2003 Bisbee, Arizona
All Small & Minor Watercourses in Cochise County 03-003-NAV
March 12, 2003 Bisbee, Arizona
Lower Salt River 03-005-NAV (Granite Reef Dam to the confluence
with the Gila River) April 7 & 8, 2003 Phoenix, Arizona
Gila River (Graham County) 03-007-NAV 1st of 6 Counties
October 14, 2003 Safford, Arizona
Home
Old Case Legal Mems
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Page 1 of 7Status of Cases
9/26/2014http://www.ansac.az.gov/status_of_cases.asp
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All Small & Minor Watercourses in Graham County 03-006-NAV
October 14, 2003 Safford, Arizona
Gila River (Greenlee County) 03-007-NAV 2nd of 6 Counties (was
03-009) October 15, 2003 Clifton, Arizona
Blue River (Greenlee County) 03-011-NAV October 15, 2003
Clifton, Arizona
San Francisco River (Greenlee County) 03-010-NAV October 15,
2003 Clifton, Arizona
All Small & Minor Watercourses in Greenlee County 03-008-NAV
October 15, 2003 Clifton, Arizona
Santa Cruz River (Pima County) 03-002-NAV 2nd of 3 Counties (was
04-001) January 22, 2004 Tucson, Arizona
San Pedro River (Pima County) 03-004-NAV 2nd of 3 Counties (was
04-002) January 22, 2004 Tucson, Arizona
All Small & Minor Watercourses in Pima County 04-003-NAV
January 22, 2004 Tucson, Arizona
Santa Cruz River (Pinal County) 3d of 3 Counties 03-002-NAV (was
04-004) March 9, 2004 Florence, Arizona
San Pedro River (Pinal County) 03-004-NAV 3d of 3 Counties
(was04-005) March 9, 2004 Florence, Arizona
Gila River (Pinal County) 03-007-NAV 3d of 6 Counties (was
04-006) March 9, 2004 Florence, Arizona
All Small & Minor Watercourses in Pinal County 04-007-NAV
March 9, 2004 Florence, Arizona
All Small & Minor Watercourses in Gila County 04-010-NAV
November 15, 2004-Cont. Globe, Arizona
Gila River in Gila County, 03-007-NAV 4th of 6 Counties November
15, 2004 Globe, Arizona
Upper Salt River in Gila County, 04-008-NAV 1st of 2 Counties
November 15, 2004 Globe, Arizona
Gila River in Yuma County, 03-007-NAV 5th of 6 Counties January
24, 2005 Yuma, Arizona
All Small & Minor Watercourses in Yavapai County 05-001-NAV
March 29, 2005 Prescott, Arizona
Agua Fria River (Yavapai County) 05-002-NAV 1st of 2 Counties
March 29, 2005 Prescott, Arizona
Hassyampa River (Yavapai County) 05-004-NAV 1st of 2 Counties
March 29, 2005 Prescott, Arizona
Burro Creek (Yavapai County) 05-003-NAV 1st of 2 Counties March
29, 2005 Prescott, Arizona
Santa Maria River (Yavapai County) 05-005-NAV 1st of 3 Counties
March 29, 2005 Prescott, Arizona
Verde River (Yavapai County) 04-009-NAV 1st of 2 Counties March
29, 2005 Prescott, Arizona
All Small & Minor Watercourses in Navajo County 05-006-NAV
April 25, 2005 Holbrook, Arizona
April 25, 2005 Holbrook, Arizona
Page 2 of 7Status of Cases
9/26/2014http://www.ansac.az.gov/status_of_cases.asp
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Little Colorado River (Navajo County) 05-007-NAV 1st of 3
Counties
Puerco River (Navajo County) 05-008-NAV 1st of 2 Counties April
25, 2005 Holbrook, Arizona
All Small & Minor Watercourses in Apache County 05-009-NAV
April 26, 2005 St. Johns, Arizona
Little Colorado River (Apache County) 05-007-NAV 2nd of 3
Counties April 26, 2005 St. Johns, Arizona
Puerco River (Apache County) 05-008-NAV Last of 2 Counties April
26, 2005 St. Johns, Arizona
All Small & Minor Watercourses in Coconino County 05-010-NAV
July 14, 2005 Flagstaff, Arizona
Little Colorado River (Coconino County) 05-007-NAV Last of 3
Counties July 14, 2005 Flagstaff, Arizona
Big Sandy (Mohave County) 05-011-NAV Only County August 8, 2005
Kingman, Arizona
Bill Williams (Mohave County) 05-012-NAV 1st of 2 Counties
August 8, 2005 Kingman, Arizona
Burro Creek (Mohave County) 05-003-NAV Last of 2 Counties August
8, 2005 Kingman, Arizona
Santa Maria River (Mohave County) 05-005-NAV 2nd of 3 Counties
August 8, 2005 Kingman, Arizona
Virgin River (Mohave County) 05-013-NAV Only County August 8,
2005 Kingman, Arizona
Bill Williams (La Paz County) 05-012-NAV Last of 2 Counties
August 9, 2005 Parker, Arizona
Santa Marie River (La Paz County) 05-005-NAV Last of 3 Counties
August 9, 2005 Parker, Arizona
Agua Fria River (Maricopa County) 05-002-NAV Last of 2 Counties
September 21, 2005 Phoenix, Arizona
Hassayampa River (Maricopa County) 05-004-NAV Last of 2 Counties
September 21, 2005 Phoenix, Arizona
Upper Salt River (Maricopa County) 04-008-NAV Last of 2 Counties
October 20, 2005 Phoenix, Arizona
All Small & Minor Watercourses in Gila County (Completion of
Hearing from 11/15/04) October 20, 2005 Phoenix, Arizona
All Small & Minor Watercourses in Maricopa County 05-014-NAV
November 16, 2005 Phoenix, Arizona
Gila River (Maricopa County) 03-007-NAV Last of 6 Counties
November 16 & 17, 2005 Phoenix, Arizona
Verde River (Maricopa County) 04-009-NAV Last of 2 Counties
Nov 16, and Nov 17, 2005 and concluded on January 18, 2006
Phoenix, Arizona
(C) ANSAC Navigability Determinations and Dates, and Report
Issue Dates.
Bold in left column indicates major watercourse. Reports Pending
is repeated in Section F and approximately nine months of appeal
time during which a party may file a motion for Judicial Review
begins on the Report Issue Date listed below.
Watercourse Report Issue Date
Page 3 of 7Status of Cases
9/26/2014http://www.ansac.az.gov/status_of_cases.asp
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Determination & Date
All Small & Minor Watercourses in Yuma County 02-001-NAV
Non-Navigable, 12/09/02 February 20, 2003
All Small & Minor Watercourses in Mohave County
02-002-NAV
Non-Navigable, 03/12/03
September 23, 2003
All Small & Minor Watercourses in La Paz County
02-003-NAV
Non-Navigable, 03/12/03
September 23, 2003
All Small & Minor Watercourses in Santa Cruz County
03-001-NAV
Non-Navigable, 09/23/03 December 16, 2003
All Small & Minor Watercourses in Cochise County
03-003-NAV
Non-Navigable, 09/23/03 December 16, 2003
All Small & Minor Watercourse in Graham County
03-006-NAV
Non-Navigable, 01/27/04 June 28, 2004
All Small & Minor Watercourses in Greenlee County
03-008-NAV
Non-Navigable, 01/27/04 June 28, 2004
San Francisco River 03-010-NAV Non-Navigable, 01/27/04 June 28,
2004
Blue River 03-011-NAV Non-Navigable, 01/27/04 June 28, 2004
Lower Salt River 03-005-NAV (Presently On Appeal-AZ Court of
Appeals)
Non-Navigable, 01/27/04 September 21, 2005
San Pedro River 03-004-NAV (Presently On Appeal-Pima Cy Superior
Court)
Non-Navigable, 09/16/04 October 18, 2006
Santa Cruz River 03-002-NAV (Presently On Appeal-Pima Cy
Superior Court)
Non-Navigable, 09/16/04 October 18, 2006
All Small & Minor Watercourses in Pima County 04-003-NAV
Non-Navigable, 09/16/04 November 17, 2005
All Small & Minor Watercourses in Pinal County
04-007-NAV
Non-Navigable, 09/16/04 September 21, 2005
All Small & Minor Watercourses in Yavapai County
05-001-NAV
Non-Navigable, 07/14/05
Report pending since 07/14/05
All Small & Minor Watercourses in Navajo County
05-006-NAV
Non-Navigable, 07/14/05
Report pending since 07/14/05
All Small & Minor Watercourses in Apache County
05-009-NAV
Non-Navigable, 07/14/05
Report pending since 07/14/05
Puerco River 05-008-NAV Non-Navigable, 07/14/05 November 17,
2009
Little Colorado River 05-007-NAV Non-Navigable, 10/20/05
November 17, 2009
Big Sandy 05-011-NAV Non-Navigable, 10/20/05 April 28, 2011
Bill Williams 05-012-NAV Non-Navigable, 10/20/05 April 28,
2011
Burro Creek 05-003-NAV Non-Navigable, 10/20/05 April 28,
2011
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Santa Maria River 05-005-NAV Non-Navigable, 10/20/05
April 28, 2011
Virgin River 05-013-NAV Non-Navigable, 10/20/05 January 27,
2009
All Small & Minor Watercourses in Coconino County
05-010-NAV
Non-Navigable, 11/17/05 April 28, 2011
Agua Fria River 05-002-NAV Non-Navigable, 4/11/06 November 17,
2009
Hassayampa River 05-004-NAV Non-Navigable, 4/11/06 November 17,
2009
All Small & Minor Watercourses in Maricopa County
05-014-NAV
Non-Navigable, 4/11/06 October 18, 2006
All Small & Minor Watercourses in Gila County 04-010-NAV
Non-Navigable, 5/24/06 April 11, 2007
Gila River 03-007-NAV Non-Navigable, 5/24/06 January 27,
2009
Upper Salt River 04-008-NAV (Presently On Appeal-Maricopa Cy
Superior Court)
Non-Navigable, 5/24/06 December 13, 2007
Verde River 04-009-NAV (Presently On Appeal-Maricopa Cy Superior
Court)
Non-Navigable, 5/24/06 March 24, 2008
(D) ANSAC hearings awaiting post hearing legal memorandums.
Watercourses for which the evidentiary navigability hearings
have been completed, all testimony has been heard and all physical
evidence has been received, but the times are still pending for
receiving post hearing legal memorandums.
Watercourse Hearing Date Hearing Location
None-All Post Hearing Legal Memorandum Due Dates Have Expired.
N/A N/A
(E) ANSAC hearings that are at issue and awaiting navigability
determinations.
All testimony has been heard, all physical evidence has been
received, all post hearing opening and response memorandums have
been received and the times have expired for receiving
additional
legal briefs. The evidence and legal memorandums are being
reviewed by the Commissioners and a vote to determine navigability
will be held in the future.
Watercourse Hearing Date Hearing Location
None-All Navigability Determinations have been Made. N/A N/A
(F) ANSAC reports pending and not yet completed and adopted by
Commission.
Bold in left column indicates major watercourse. Once a report
is completed and adopted by the Commission, approximately nine
months of time begins during which an appeal can be filed in
Superior Court in the appropriate county. The navigability
determination date, which is the date the report is ratified or
adopted by the Commission, is also the beginning date for appeal
time.
Watercourse Determination & Date Report Issue Date
All Small & Minor Watercourses in Yavapai County
05-001-NAV
Non-Navigable, 07/14/05
Report pending since 07/14/05
All Small & Minor Watercourses in Navajo County
05-006-NAV
Non-Navigable, 07/14/05
Report pending since 07/14/05
All Small & Minor Watercourses in Apache County
05-009-NAV
Non-Navigable, 07/14/05
Report pending since 07/14/05
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Big Sandy 05-011-NAV Non-Navigable, 10/20/05
Report pending since 10/20/05
Bill Williams 05-012-NAV Non-Navigable, 10/20/05Report pending
since 10/20/05
Burro Creek 05-003-NAV Non-Navigable, 10/20/05Report pending
since 10/20/05
Santa Maria River 05-005-NAV Non-Navigable, 10/20/05Report
pending since 10/20/05
All Small & Minor Watercourses in Coconino County
05-010-NAV
Non-Navigable, 11/17/05
Report pending since 11/17/05
(G) Notices of Intent to Appeal.
Watercourse By Notice Received by ANSAC
Lower Salt River 03-005-NAV State Land Department March 24,
2006
San Pedro River 03-004-NAV Arizona Center for Law in the Public
Interest July 23, 2007
Santa Cruz River 03-002-NAV Arizona Center for Law in the Public
Interest July 23, 2007
Upper Salt River 04-008-NAV State Land Department June 10,
2008
Verde River 04-009-NAV State Land Department September 19,
2008
Gila River 03-007-NAV State Land Department July 24, 2009
(H) Appeals/Judicial Reviews Filed in State Superior Court.
Watercourse By Date Filed Court/Division Date Completed
Results
Lower Salt River 03-005-NAV
SLD/Attorney General
June 30, 2006
Maricopa County
Superior Court, Judge Carey Snyder Hyatt,
LC2006-000413-001DT
Judgment
August 7, 2007
ANSAC's Determination of September 21,
2005 was affirmed.
San Pedro River 03-004-NAV
Arizona Center for Law in the Public Interest
July 18, 2007
Pima County Superior Court, Judge Paul E.
Tang, C20073884
Santa Cruz River 03-002-NAV
Arizona Center for Law in the Public Interest
July 18, 2007
Pima County Superior Court, Judge Paul E.
Tang, C20073885
Upper Salt River 04-008-NAV
SLD/Attorney General
September 18, 2008
Maricopa County
Superior Court Judge Crane McLennen, LC2008-
000602-001 DT
Verde River 04-009-NAV
SLD/Attorney General
December 19, 2008 Maricopa
County Superior Court Judge Crane McLennen, LC2008-
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000860-001 DT
Gila River 03-007-NAV
SLD/Attorney General
October 27, 2009
Maricopa County Superior Court Judge Crane McLennen
LC2009-000779-001 DT
(I) Appeals/Judicial Reviews Completed in State Superior Court
and filed in the Arizona Court of Appeals.
Watercourse By Date Filed Date Completed Results
Lower Salt River 03-005-NAV
ACLPI, SLD/Attorney
General
August 29, 2007
May 3, 2010
Vacated Superior Court Decision and Remanded/Returned to ANSAC
for Additional Proceedings. May 10, 2010, ANSAC filed Motion to
Reconsider with the Court of Appeals. June 15, 2010, Court of
Appeals denied Motion for Reconsideration and Upheld its original
findings.
(J) Matters filed as Petitions for Review
with the Arizona Supreme Court.
Watercourse By Date Filed Date Completed Results
Lower Salt River 03-005-NAV ANSAC
June 28, 2010
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