Sunday, June 24, 2012

Lets Play Fair: The Hualapai-Park boundary. Again.

The 1881 & subsequent orders established the Reservation boundary as "north thirty miles TO the Colorado River, then ALONG said river" (my emphasis). The 1975 legislation put the GCNP boundary "on south bank" of the said river adjacent to the Reservation. Also, the legislation forbade taking any of the Hualapai reservation without tribal permission. It has never given this permission. 

In my 21 Jan 1975 letter to the Sup't, three weeks after the Act was signed, I wrote:

However, early in 1975, the Superintendent was saying that the Park boundary was to the historic high water line or mark (HHWL), such that by July, the Hualapai attorney knew this and was objecting. As indeed, I object, too. 

For the HHWL (i.e., the maximum the river flow has ever reached) implies that much of the land along the river shore and even back into some side canyons is under Park administration. This was never intended by Senator Goldwater or anyone else working on the legislation in 1972-5 (the history of which I am now writing). So where in the legislative (or other) history did NPS find support for its views? Remember that the Sup't was saying HHWL before the two solicitor opinions, and in fact those opinions try to ignore the 1975 legislation and its history (well, they did not know it, and it would have inconvenienced their attempt to legalize what the Sup't had without justification claimed). And there seems to be nothing written by or for the Park administration in 1975 justifying HHWL; according to the memory of D.Sup't B. Shaw, that was just what they understood to be the case, the usual interpretation of "on south bank". (Majeske, in his critical article, argues that even this is incorrect.)

But suppose we accept for the moment that NPS is correct in interpreting the phrase "on south bank" to mean HHWL. What then does the 1881 "to the river and along the river" mean if we think in the same interpretive frame? If "on the south bank" coming from the water side, means to the HHWL, is it not a parallel argument that "to and along" (TAA) means to the historic low water line, coming from the land side? That is, the Reservation included all possible land, even if covered by water at times? This might seem as extreme as the NPS interpretation. On the other hand, the Army map drawer, Lt. Palfrey went down to the river at Diamond Creek in June. Surely that gave him a practical understanding of what the (legal) language of TAA would mean. Surely running Hualapai land to the river's edge would have appealed to his engineer's practicality. After all, he is the one who, going to the Havasu Canyon that same summer, decided the original quadrilateral boundary was too impractical to use and therefore recommended shrinking back the boundary and confining the Havasupai Reservation to the Canyon. NPS would have to argue, though it never has to my knowledge, that from the beginning, in 1881, the Army officers drawing a line from the south, north to the river, and along it had in mind as a legal definition that this meant to the (unknown at that time) maximum ever flood line. 

So lets play fair, and if the NPS says the 1975 Act goes to the HHWL, the Hualapai 1882 Reservation proclamation goes to the HLWL. If we accept this view of interpreting the 1882 and the 1975 language within the same framework, then the 1975 HHWL interpretation by NPS collides with the 1881 TAA interpretation. If so, then of course the Reservation has priority over this strip between the high and low water lines. Therefore, reinforced by the 1975 Act's provision forbidding taking Hualapai land without permission, the Hualapai get to keep any of the south bank whenever the water recedes, as it does more or less daily. Practically and historically and legally, that is, ownership & "sovereignty" over the south shore between the two water lines is with the Hualapai. I stress that this is true using NPS's own argument, and applying it to both parties' claims.

By the way, although NPS actual, practical, & legal jurisdiction does not therefore run to any land on the south bank along the Hualapai Reservation, it is still allowed by its rules to draw maps that show the Park running to the HHWL, since in NPS minds, there is a difference between its interpretation of the (often fantasy, as in the Hualapai case) legislated boundary and the administrative boundary behind which NPS does actually rule.

I do hope that anyone using NPS maps will be warned of the difference between the legislated fantasy and the legal reality. If the Hualapai ever decide to go to court to test the ownership, incautious river runners camping and hiking on the south side would make plump targets for the Hualapai police to swoop down on. Just imagine the fun as the Hualapai Swat Team is landed by Hualapai Air Force helicopters to round up trespassing river runners and confine them to the Hualapai Navy's fleet of motorized rafts to be transported to a special Hualapai Court convened on Diamond Creek beach. Would the NPS Ranger Patrol launch a counter-attack to rescue the prisoners? Would the Solicitor send a squad of Special Deputies to defend the right of river runners to camp on disputed land?  


  1. I am a Land Surveyor, licensed in two states. I am not familiar with riparian rights in Arizona but from my experience with water frontage, it has always been to the ordinary high water mark (OHWM). If I were hired to survey the 1881 description, I would come to the OHWM, and follow it, to the next call. The Park Service is blowing smoke.

  2. Thanks for this. I seem to remember, from the first surveyor's notes, that he could not even get to the river where the boundary line reaches it, because of the ruggedness of the country.
    And I do hope the ordinary high water mark means where the water comes from day to day. If so then the OHWM matches what the Hualapai reservation came to, and where Congress put the Park bounndary.