Monday, October 3, 2011

GCNP-Hualapai Boundary: Reflections on the Swamp

River Middle Muddle And The Water Line That Got High--With A Big Downer After

So where is the boundary? Lets check off the points:

1883 Executive Order says "to" and "along" Colorado River.
19th & 20th century surveys: stayed away from river boundary.
1910-20's: U.S. withdrawals of river + ¼-mile or more for hydropower, including reservation land.
1930's: Lake Mead covers variable amounts of reservation land as the reservoir fills and drops, etc.
1939: Hualapai interested in getting something from proposed Bridge Canyon Dam(BCD).
1930-40's: Supreme Court settles Hualapai title, but nothing defined for river boundary.
1949-50: Arizona federal legislators accommodate Hualapai demands for compensation if BCD built as part of Central Arizona Project; no statement on boundary.
This starts the period, still continuing, of Hualapai claim to middle of river; haitat.
1950's-60's: Indian Claims Commission process: Hualapai claim to middle of the river. ICC rejects claim and defines northern river boundary as on southern shoreline, but is not more definite. During testimony, evidence is given that Hualapai & Southern Paiute both used rivershore and crossed river.
Scanty archeological evidence from that period and since adds nothing definite about use and occupancy. 
1960's-70's+: Hualapai pursue participation in BCD authorization, but boundary not further defined since no need given the amount of land used.
1964: LMNRA Act sets NRA boundary well south of river; Hualapai reject including any of their land in the NRA.
1960's: USGS quads show boundary in middle of river and reservation land in NRA.
1972-5: Legislative history of Park enlargement Act  shows one goal is unified administration of river. Language of Act places boundary "on south bank" with supporting statements saying entire water surface was in Park. Intent was to end ambiguity.
1975 on: GCNP Sup't tells people boundary is at high water mark; view maintained by NPS since.
1975-8: Hualapai & allies, including attorney and Goldwater aide, realizing too late what the Enlargement Act did, led an attack on NPS view of boundary, but the language of all sides ends up as saying, in effect, "where ever the Hualapai boundary was, it still is; none of their land was taken", without explicitly refuting that river water surface is in Park, or offering any evidence that it is in middle, only repeating that Hualapai claim to the middle. Hualapai attorney documents indicate his uncertainty as to whether their claim to the middle would prevail.
1976: Interior Field Solicitor writes opinion that high water line is boundary, but opinion has errors and puts boundary at high water mark only by assertion; no documentation.
Focus of analysis is on bed of river, not river surface and its traffic, and secondarily that river is a navigable stream. 
1988: Updated USGS quads show boundary exactly on water edge of south bank.
1997: Interior Solicitor opinion supports 1976 conclusion, but undercuts it, and itself offers no documentation or irrefutable legal analysis.
2000: Park and Hualapai entered into an agreement to disagree and met over several years to discuss interlocking river activities and problems.
2001: Majeske article attacked solicitor opinions as invalid, but his arguments also lack analysis and documentation, including his conclusion that river is non-navigable, made once again by assertion.
201?-on: The best answer is the "wet foot--dry foot" doctrine: GCNP has jurisdiction over the river's water surface, fluctuating as it does, and the Hualapai own the land to the water's edge, fluctuating as it does.

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