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Utah Stream Access Coalition v. Orange Street Development

Supreme Court of Utah

November 22, 2017

Utah Stream Access Coalition, Appellee,
v.
Orange Street Development, Appellant, and State of Utah, by and through its Division of Forestry, Fire and State Lands, Appellee.

         On Direct Appeal

         Third District Court, Silver Summit The Honorable Keith A. Kelly No. 110500360

          W. Cullen Battle, Craig C. Coburn, Salt Lake City, for appellee Utah Stream Access Coalition

          Michael D. Zimmerman, Troy L. Booher, Erin Bergeson Hull, Christopher E. Bramhall, Salt Lake City, Anthony W. Schofield, Peter C. Schofield, Lehi, for appellant

          Sean D. Reyes, Att'y Gen., Stanford E. Purser, Deputy Solic. Gen., Norman K. Johnson, Michael S. Johnson, John Robinson Jr., Asst. Att'ys Gen., Salt Lake City, for appellee State of Utah Division of Forestry, Fire and State Lands

          ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, and JUDGE CHRISTIANSEN joined.

          Having recused himself, JUSTICE PEARCE does not participate herein; COURT OF APPEALS ASSOCIATE PRESIDING JUDGE MICHELE M. CHRISTIANSEN sat.

          OPINION

          LEE, ASSOCIATE CHIEF JUSTICE.

         ¶ 1 Our decision in Conatser v. Johnson, 2008 UT 48, 194 P.3d 897, established a public easement right to incidentally touch the beds of Utah waterways for recreational or other lawful purposes. The legislature responded to this decision by enacting the Public Waters Access Act. Utah Code § 73-29-101 et seq. That Act cuts back on the easement right recognized in Conatser. It provides for public access rights for recreational use of public water that is "navigable water" or water "on public property." Id. § 73-29-201(1). In addition, the statute also recognizes access rights to public water on private property "with the private property owner's permission" and "a public right to float on public water that has sufficient width, depth, and flow to allow free passage of the chosen vessel at the time of floating." Id. §§ 73-29-201(2) & 73-29-202(1). This latter right includes the right to "incidentally touch private property as required for safe passage and continued movement, " the right of "portage" around certain obstructions in the water, and the right to "fish while floating." Id. § 73-29-202(2).

         ¶ 2 This case presents questions concerning the interpretation and application of the Act. The plaintiff is Utah Stream Access Coalition (USAC). USAC filed this suit seeking a declaration that a one-mile stretch of the Weber River is "navigable water" to which the public has a statutory right of recreational use.

         ¶ 3 The district court ruled in USAC's favor. It found that the one-mile stretch of the Weber River was "navigable water." And it accordingly held that USAC had a right of access to the waters in question. We affirm. We hold that the Act invokes a legal term of art embedded in federal law. And we uphold the district court's conclusion that the stretch of the Weber River in question qualifies as "navigable" under this standard.

         I

         ¶ 4 In 2011, USAC filed this lawsuit against Orange Street and other property owners along a one-mile stretch of the Weber River. USAC initially named the Summit County Sherriff, the Utah Division of Wildlife Resources, and the Division of Parks and Recreation as additional defendants. But the parties agreed to substitute the Utah Division of Forestry, Fire, and State Lands (the State) for these parties. And throughout the litigation, the State took a mostly neutral stance; it did not take a formal position on the questions presented.

         ¶ 5 USAC asserted that the disputed section of the Weber River is navigable water. And it sought declaratory relief confirming its right to use the river for recreation and an injunction barring property owners and state officials from interfering with its members' recreational use rights.

         ¶ 6 During the litigation, the State raised a concern about the scope of the issues before the district court-specifically the title implications of the litigation for property owners along the Weber River. In response to these and other concerns, USAC explained that it sought only recreational use rights for its members and not a title determination. Ultimately, USAC's trial brief clarified that it rooted its right of access in the Public Waters Access Act, which in its view implicated a navigability standard imported from federal law.

         ¶ 7 The district court held a four-day bench trial in February 2015. At trial the court heard extensive testimony on historical commercial uses of the Weber River. The evidence included testimony and documentation of log drives on the one-mile segment of the river at issue in the case. After trial the court issued findings of fact and conclusions of law. It concluded that the disputed section of the river was navigable under the "navigability for title" standard set forth in federal "equal footing" law. The district court accepted the testimony of USAC's expert showing regular commercial use of the Weber River leading up to Utah's statehood. These commercial uses included transportation of railroad ties, delivery of mining timber, and floating of logs to sawmills. The district court determined, moreover, that the Weber River was essential to this commerce, as overland transportation of timber was not economically viable. And it issued an injunction preventing landowners and state officers from interfering with the recreational use rights of the public on this stretch of the river.

         ¶ 8 The district court also quieted title to the streambed under the one-mile stretch of the Weber River, holding that the State held title in the streambed. But USAC did not assert a quiet title claim- and it even disavowed any interest in pursuing a title determination during the litigation. And all parties on appeal acknowledge that the quiet title decision was error.

         ¶ 9 We accordingly reverse the district court on this point- vacating the decision to quiet title to the streambed. And because we reverse on the ground that a quiet title claim was not properly presented to the district court, we do not reach the question whether USAC would have standing to seek a title determination in these circumstances.

         ¶ 10 In so doing we do not take a position on who holds title to the streambed in question, or even on the question whether the State would be precluded from challenging the navigability determination here in any future case in which a title dispute may arise. Thus, we are not holding that Orange Street "still hold[s] title to the land in name only." Infra ¶ 45. Nor are we deciding that the navigability decision we affirm here is based on "a 'third category of water courses'" distinct from those discussed herein. Infra ¶ 47. We are simply holding that it was error to award a remedy (a declaration and order expressly quieting title in the State) in the absence of a specific request therefor.

         ¶ 11 If and when there is a title dispute over the streambed in question, it may well be that the State will be precluded from challenging the navigability determination in this case. But that will depend on the application of the law of claim preclusion or collateral estoppel.[1] The parties have not briefed that question here so it would be premature for us to resolve it. And it was likewise premature for the district court to order a remedy that no party had requested.

         II

         ¶ 12 The Public Waters Access Act states that "[t]he public may use a public water for recreational activity if" it "is a navigable water." Utah Code § 73-29-201(1)(a)(i). And the Act defines navigable water as "a water course that in its natural state without the aid of artificial means is useful for commerce and has a useful capacity as a public highway of transportation." Id. § 73-29-102(4).

         ¶ 13 Orange Street challenges the district court's application of these provisions on two grounds. First it challenges the legal standard employed by the district court. It notes that the statute includes its own definition of "navigable water" and claims that the statutory definition differs from the (federal) standard applied by the district court. Second, Orange Street challenges the district court's application of the navigability standard to the facts of this case. It contends that the district court erred in its determination of the navigability of the Weber River even assuming the correctness of the legal standard applied below.

         ¶ 14 Orange Street concedes that it failed to preserve its challenge to the legal standard applied by the district court. With that in mind, Orange Street's first argument is rightly framed in "plain error" terms. See State v. Powell, 2007 UT 9, ¶ 18, 154 P.3d 788. Thus, we consider the legal standard applied by the district court under a plain error standard of review.[2] Id. And we find a lack of plain error.

         ¶ 15 We also affirm the district court's finding of navigability. The district court's findings of fact, of course, are reviewed deferentially for clear error. See In re Adoption of Baby B., 2012 UT 35, ¶ 40, 308 P.3d 382. The standard of review for the mixed determination of navigability under the facts of this case is less clear. Id. ¶¶ 42-44 (noting that the standard of review of mixed determinations "is sometimes deferential and sometimes not, " depending on "the nature of the issue and the marginal costs and benefits of a less deferential, more heavy-handed appellate touch"). But we think that finding should be given some deference too, given the fact-intensive nature of the question of navigability. Again, however, we agree with the district court's analysis, and find that the evidence in the record supports the determination that the stretch of the Weber River in question is navigable under the Act.

         A

         ¶ 16 We agree with Orange Street's threshold point: the question of "navigability" under the Public Waters Access Act is decidedly a question of state law. The Act includes a statutory definition of navigability. See Utah Code § 73-29-102(4) (defining "navigable waters"). And it is that standard that governs the statutory question of navigability under Utah law.

         ¶ 17 We also agree that the district court looked to the federal "navigability for title" standard in its analysis. It cited federal cases in articulating the operative standard of navigability in this case. See Daniel Ball, 77 U.S. 557, 577 (1870), superseded by statute as stated in Rapanos v. United ...


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