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Arizona Ctr. for Law in the Pub. Interest v. Hassell

Citation: 23 ELR 20348
No. No. 1 CA-CV 89-134, 837 P.2d 158/172 Ariz. 356, (Ariz. Ct. App., 10/06/1992)

The court holds that an Arizona statute, which relinquished state claims to lands below the high water mark of all navigable watercourses, in order to protect existing private title assumptions violates the public trust doctrine and the state constitutional gift clause. The court first holds that the statute, H.B. 2017, does not violate the Arizona Constitution's prohibition against special laws, because it serves a valid public purpose, is sufficiently general to include all members similarly situated, and is elastic enough to accommodate change. The court next holds that the magnitude of the land cession is sufficient to warrant gift clause and public trust analysis. The court holds that, although the statute was enacted for a valid public purpose, the gift clause requirement of equitable and reasonable consideration has not been met since no estimate of the value of state equal footing claims was made prior to their relinquishment. The court holds that the statute is deficient because it releases the state's interest in the lands without providing the means to prevent private uses inconsistent with the public trust. The court awards attorneys fees to the public interest organizations under the private attorney general doctrine, because they vindicated a right that benefits a large number of people, requires private enforcement, and is of societal importance.

Counsel for Plaintiffs/Appellants
David S. Baron, Ass't Director
Arizona Center for Law in the Public Interest
3208 E. Ft. Lowell Rd., Ste. 106, Tucson AZ 85716
(602) 327-9547

Counsel for Defendants/Appellees
Russell A. Kolsrud, Renee B. Gerstman
Perry, Pierson & Kolsrud
One Columbus Plaza
3636 N. Central Ave., Ste. 500, Phoenix AZ 85012
(602) 264-5866