37-1123. Receiving and compiling evidence and records

A. The commission shall receive, review and consider all relevant historical and other evidence presented to the commission by the state land department and by other persons regarding the navigability or nonnavigability of watercourses in this state as of February 14, 1912, together with associated public trust values, except for evidence with respect to the Colorado river, and, after public hearings conducted pursuant to section 37-1126:

1. Based only on evidence of navigability or nonnavigability, determine which watercourses were not navigable as of February 14, 1912.

2. Based only on evidence of navigability or nonnavigability, determine which watercourses were navigable as of February 14, 1912.

3. In a separate, subsequent proceeding pursuant to section 37-1128, subsection B, consider evidence of public trust values and then identify and make a public report of any public trust values that are now associated with the navigable watercourses.

B. Before receiving, reviewing or considering any evidence pursuant to subsection A of this section for a particular watercourse, the commission shall publish notice once each week for three consecutive weeks in a newspaper of general circulation in each county in which the watercourse is located. The notice shall include:

1. A statement of the intent to receive, review and consider evidence.

2. An address to which interested parties may submit evidence for the commission's review.

3. A date by which evidence must be submitted.

4. A general description of the procedures the commission will use to review the evidence.

C. Private citizens, clubs, organizations, corporations, partnerships, unincorporated associations, municipal corporations and public entities may present evidence to the commission at a hearing according to commission rules. The submission of evidence by any party pursuant to the commission's notice under subsection B of this section does not preclude that party from submitting additional evidence at any hearing before the commission.

D. The state land department shall consult and coordinate its efforts to gather evidence of navigability and public trust values with the department of water resources, the game and fish department, the state parks board and other interested persons and public and private entities. The commission shall consider the information that those persons and entities have compiled regarding the navigability of watercourses.

E. After public notice, the commission shall set priorities for investigating and conduct hearings on the navigability of the watercourses in this state. In setting the priorities, the commission shall consider:

1. The number and value of parcels of real property that are affected by a state claim of sovereign ownership to the bed of the watercourse.

2. The degree of hardship to private parties and political subdivisions due to title uncertainties relating to the bed of the watercourse.

3. The significance of the public trust values associated with the watercourse and the degree to which those values are threatened.

4. The potential viability of this state's sovereign claims to the watercourse, giving higher priority consideration to more viable claims.

F. A person who is aggrieved by the undetermined navigability status of a watercourse may petition the commission to modify the priority set under subsection E of this section and grant expedited consideration for a particular watercourse. The commission shall grant the petition if justified by the factors listed in subsection E of this section.

G. No judicial action seeking a determination of navigability of a watercourse, to establish or obtain ownership of land within the bed and banks of a watercourse or to determine any public trust values associated with a watercourse may be commenced, continued or completed unless the commission has made a final determination with respect to the watercourse pursuant to section 37-1128. This subsection does not preclude the department from seeking a temporary restraining order or injunctive relief at any time to prevent loss or damage to public trust resources.

H. Notwithstanding subsection G of this section, any condemnation action by this state or a political subdivision of this state may proceed to trial and conclusion, including the payment of compensation, regardless of the potential claim of title by this state based on the navigability of the watercourse. In any action commenced or continued pursuant to this subsection, the court shall not consider or decide the navigability of the watercourse. Any judgment in any action commenced or continued pursuant to this subsection shall be subject to a potential claim of title by this state based on the navigability of the watercourse.