DOWN BY THE RIVERSIDE

 

Again, my take on the Park jurisdiction 

along the Hualapai Reservation

Lets see what we know. The Hualapai claimed the riverbed out to the middle of the river. The history of the 1975 GCNP Enlargement Act includes the desire of the principal sponsor to 1. unify administration and jurisdiction over river traffic in the Park Service at GCNP, and 2. to have nothing in the Act that would take Hualapai land without their agreement. The Act aimed to resolve any ambiguity in the 1883 Executive Order, and thus placed the Park boundary on the south bank, running along adjacent to the Hualapai boundary. Later on, (1976/1997), the Interior Solicitors said their opinion on the Hualapai claim was that “no”, the boundary did not go to the middle of the river; the 1883 Executive Order set the boundary at the high water level along the river.

It is my opinion that reconciling any ambiguity raised by the two desires of the sponsor means that “high water level” must be construed to favor the Hualapai and thus take none of the south bank above the high water level as marked by the usual diurnal rise and fall of the river caused by normal operation of Glen Canyon dam. This point is reinforced because that is the high water level at the time the Park boundary was set by the 1975 Act, as the sponsor knew. This construction is further reinforced by Hualapai-controlled riverside activities such as the Whitmore helispot and use of Diamond Creek beach. The sponsors, I am sure, would have been strongly negative about the Park Service asserting jurisdiction over the south bank to that extent. 

We are left then with river traffic use of rocks and trees along the shore to tie up and scout the river ahead being a legitimate use for river traffic. Beyond that, lunch stops (which can include moving away from the river, up the beach), overnight camps, hiking etc., are all to be construed as taking place on Hualapai land and therefore are under their jurisdiction. This, of course, also includes the helispot and Diamond Creek beach. That is, if the Hualapai wish river travelers to secure a permit and to pay for the privilege for stops of the latter sorts, it is their right as the land-owners (sovereigns) to do so. I firmly believe this would be the opinion of the sponsors of the legislation, based on my memory of conversations, meetings, and actions with them and their staffs in the 1972-5 period of the legislative history. 

While it is true that referring to the high water level in 1883 can be defended in some strict sense of the law, such an interpretation runs counter to the 1975 Act and the 1883 Executive Order when they are construed in favor of the Hualapai. Bluntly put, to insist on an 1883 high water line would be theft of the Hualapai’s land, given the history. It is enough to deny their claim out into the river; we need not then turn around and advance beyond the river’s edge to stake any larger claim to their territory. 

I was reinforced in this point by something I came across, traced back across the centuries to the Institutes of Justinian in the 6th century:

The public use of the banks of a river, as of the river itself, is part of the law of nations; consequently every one is entitled to bring his vessel to the bank, and fasten cables to the trees growing there, and use it as a resting place for the cargo, as freely as he may navigate the river itself. But the ownership of the bank is in the owner of the adjoining land, and consequently so too is the ownership of the trees which grow upon it. 

No one therefore is forbidden access to the sea­shore, provided he abstains from injury to houses, monuments, and buildings generally; for these are not, like the sea itself, subject to the law of nations. 

This may sound antiquarian, but the principle of it has lasted.

The administration of Grand Canyon National Park would be well advised to follow the intent of the 1972 Act and previous initiatives of Park administrators and seek to work with the Hualapai for harmonious and pro-environmental oversight of use of the Colorado River in Grand Canyon.