District Court, Silver Summit The Honorable Keith A. Kelly
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
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.
recused himself, JUSTICE PEARCE does not participate herein;
COURT OF APPEALS ASSOCIATE PRESIDING JUDGE MICHELE M.
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.
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
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
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
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. 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.
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
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. 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.
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 ...