Direct Appeal Fourth District, Wasatch County The Honorable
Derek P. Pullan No. 100500558
C. Coburn, Zachary E. Peterson, John L. Young, W. Cullen
Battle, Salt Lake City, for appellee and cross-appellant
P. Lee, Nathan D. Thomas, Elizabeth M. Butler, Salt Lake
City, for VR Acquisitions, LLC
D. Reyes, Att'y Gen., Tyler R. Green, Solic. Gen., Thom
D. Roberts, Asst. Att'y Gen., Stanford E. Purser, Deputy
Solic. Gen., Salt Lake City, for State of Utah
Michael D. Zimmerman, John J. Hurst, Salt Lake City, for
Associate Chief Justice Lee authored the opinion of the
Court, in which Justice Petersen and Judge Christiansen
Justice Himonas filed an opinion concurring in part and
dissenting in part, in which Chief Justice Durrant joined.
recused himself, Justice Pearce does not participate herein;
Court of Appeals Judge Michele M. Christiansen Forster sat.
ASSOCIATE CHIEF JUSTICE
In Conatser v. Johnson we recognized a public
easement right "to touch privately owned beds of state
waters in ways incidental to all recreational rights" to
those waters. 2008 UT 48, ¶ 19, 194 P.3d 897. Citing
common-law easement principles, we held that the
"incidental right of touching the water's bed is
reasonably necessary" to the public's right not just
to float on the water but also to wade in waters for hunting,
fishing, swimming, and other forms of recreation.
Id. ¶¶ 22-25. And we concluded that an
easement right of incidental touching "does not cause
unnecessary injury to the landowner." Id.
The legislature responded by enacting the Public Waters
Access Act (PWAA), Utah Code sections 73-29-101 to 73-29-208.
That statute affirms the right of the public to "float
on public water," id. § 73-29-202(1), and
to "incidentally touch private property as required for
safe passage and continued movement" and "portage
around a dangerous obstruction in the water,"
id. § 73-29-202(2). But it also restricts the
scope of the Conatser easement-by limiting the
easement to incidental touching and portage, without any
recognition of a right to wade in the stream for hunting,
fishing, swimming and other recreational uses. See
This lawsuit ensued. The case was filed by the Utah Stream
Access Coalition (USAC), an organization committed to
maintaining public access to rivers and streams throughout
Utah. In a complaint filed in the Fourth District Court USAC
asserted a constitutional right of its members to wade in
waters of the Provo River flowing through land owned by VR
Acquisitions. And it alleged that the PWAA had
unconstitutionally restricted the easement recognized by this
court in Conatser. The district court agreed. It
struck down the PWAA under "public trust"
principles set forth in article XX, section 1 of the Utah
Constitution-a provision that (1) deems "[a]ll lands of
the State" that have been "acquired" by it as
"public lands" and (2) requires that those lands
"be held in trust for the people, to be disposed of as
may be provided by law, for the respective purposes for which
they have been or may be . . . acquired." Utah Const.
art. XX, § 1.
We reverse and remand on the basis of a threshold error in
the district court's decision. The threshold error goes
to the nature of the easement as recognized in the
Conatser case. The district court treated that
easement as a right rooted in constitutional soil. It
accordingly deemed that right to be one "acquired"
and "accepted" by the State under the terms of
article XX, section 1. We reverse on the basis of an error in
the district court's disposition of this issue. We
clarify that our analysis in Conatser was based only
on common-law easement principles. And because this
court's common-law decisions are subject to adaptation or
reversal by the legislature, we hold that it was error for
the district court to have treated the Conatser
easement as a matter beyond the legislature's power to
revise or revisit.
The district court struck down the PWAA on constitutional
grounds. In so doing it resolved some important questions of
constitutional law. It treated the Conatser easement
as a "land of the State" covered by article XX,
concluded that such land had been "disposed of" by
the State, and held that the PWAA's regulation of such
land ran afoul of the "public trust" doctrine
established in this provision. We stop short of resolving the
core elements of USAC's constitutional challenge to the
PWAA because we reverse instead on the basis of the
above-noted threshold error. In reversing on this basis we do
not foreclose the possible viability of the district
court's ultimate disposition of this case. We explain
that it may be possible for USAC to demonstrate on remand
that there is a basis in historical fact-in the understanding
of public easements in the late 19th century-for the easement
we recognized in Conatser. And we leave it open to
USAC to seek to make such a showing on remand.
These are significant constitutional questions. And each of
them has been addressed by the parties on this appeal. But
they could also be mooted on remand if USAC fails to
establish that the Conatser easement has a
historical basis as a public easement as of the time of the
framing of the Utah Constitution. With this in mind, we
consider some of the parties' arguments on these issues
but decline to resolve them conclusively on this appeal.
Conatser v. Johnson
Our decision in Conatser v. Johnson arose out of a
property rights dispute culminating in a criminal trespass
action. 2008 UT 48, 194 P.3d 897. The Johnsons owned private
property over which the Weber River flowed. Id.
¶ 3. The Conatsers "put a rubber raft in the Weber
River at a public access point" above the Johnson
property and touched the riverbed as their raft floated over
that property. Id. "As they had done on at
least two previous occasions, the Johnsons ordered the
Conatsers off the river and told them to pick up their raft
and carry it out via a parallel railroad easement."
Id. "The Conatsers refused and continued
floating down the river." Id. "When they
exited at a public access point, the Morgan County Deputy
Sheriff cited them for criminal trespass." Id.
In a civil suit before the Second District Court the
Conatsers argued that they were entitled to
"'recreate in natural public waters, '"
including by "'touch[ing] or walk[ing] upon the
bottoms of said waters in non-obtrusive ways.'"
Id. ¶ 4. The district court recognized a more
limited public easement. It held that the Conatsers were
limited to "activities that could be performed 'upon
the water, '-chiefly floating-and that the right to touch
the river's bed was incidental only to the right of
floatation." Id. ¶ 5. In so doing the
district court relied on a decision from the Wyoming Supreme
Court in Day v. Armstrong, 362 P.2d 137 (Wyo. 1961).
The Day decision "limited the scope of the
public's easement to the 'right of floatation'
upon the water and allowed only those activities that could
be done 'while so lawfully floating.'"
Conaster, 2008 UT 48, ¶ 12. Citing
Day, "the district court held that the
Conatsers 'may walk along the banks of the river . . . in
order to continue floating . . . so long as [their]
actions are as minimally intrusive as possible of the private
owners' land.'" Id. ¶ 5
(alterations in original). Yet it also held that
"'[w]ading or walking along the river, where such
conduct is not incidental to the right of floatation
upon natural waters, would constitute a trespass of private
property rights.'" Id. (alteration in
We reversed. We first clarified that although "the
public owns state waters, the beds that lie beneath those
waters may be" either publicly or privately owned:
"If a body of water is navigable- that is, if it is
useful for commerce and has 'practical usefulness to the
public as a public highway'-then the state owns the
water's bed. If it is non-navigable, [however], then its
bed may be privately owned." Id. ¶ 9
(citations omitted). Next we noted that "[t]he
public's easement to use the water" nonetheless
"exists '[i]rrespective of the ownership of the bed
and navigability of the water.'" Id.
(second alteration in original). And we held that "the
scope of an easement is a question of law," id.
¶ 10, which we resolved by reference to standards set
forth in common-law decisions in Utah and others states.
We acknowledged but rejected the narrow public easement in
private streambeds as recognized by the Wyoming Supreme Court
in Day v. Armstrong. Id. ¶¶
12-15. We explained that the question of the scope of the
public easement in private streambeds was a matter of first
impression in Utah and was not before us in J.J.N.P. Co.
v. State, 655 P.2d 1133 (Utah 1982). See
Conatser, 2008 UT 48, ¶ 19 (citing
J.J.N.P., 655 P.2d at 1138 n.6). And we proceeded to
establish a broader public easement than the Wyoming Supreme
Court recognized in Day, encompassing a right to
touch streambeds for "all recreational activities that
utilize the water," including hunting. Id.
¶¶ 2, 14-15.
In so doing we invoked a common-law easement framework
established in Big Cottonwood Tanner Ditch Co. v.
Moyle, 174 P.2d 148, 160 (Utah 1946), and 25 Am. Jur. 2d
Easements and Licenses in Real Property §§
1, 81 (2007). Id. ¶¶ 20-21. Thus, we held
that "'[a]n easement is a privilege which one person
has a right to enjoy over the land of another.'"
Id. ¶ 20 (citation omitted). And we indicated
that "[t]he easement holder . . . enjoys 'the
privilege to do such acts as are necessary to make effective
his or her enjoyment of the easement, '" meaning
that the "easement holder has the right to make
incidental uses beyond the express easement and does not
exceed the easement's scope if those uses are 'made
in a reasonable manner and they do not cause unnecessary
injury to the servient owners.'" Id. ¶
21 (citations omitted).
Our determination of the proper scope of the public easement
in Conatser was based on our attempt to balance the
competing interests of the owners of the dominant and
servient estates. We struck that balance by holding (1) that
"touching the water's bed is reasonably necessary
and convenient for the effective enjoyment of the
public's easement"-its right to "float, hunt,
fish, and participate in all lawful activities that utilize
state waters," id. ¶ 23; and (2) that such
touching does not "cause unnecessary injury" to
owners of private streambeds, id. ¶ 26.
The legislature was spurred to action in response to the
Conatser decision. The legislature viewed
Conatser as effecting a "real and substantial
invasion of private property rights." Utah Code §
73-29-103(5). Through the terms of the PWAA, the legislature
sought to restore "the accommodation existing between
recreational users and private property owners" as it
existed "before the decision in Conatser v.
Johnson." Id. § 73-29-103(6).
The PWAA recognizes a public right to "float on public
water" that is wide enough and deep enough to float on.
Id. § 73-29-202(1). It also preserves the right
to "incidentally touch private property as required for
safe passage and continued movement" and to
"portage around a dangerous obstruction in the
water." Id. § 73-29-202(2). But the PWWA
restricts the public easement to these terms. In so doing it
limits the scope of the Conatser easement by
foreclosing the right to touch a streambed for purposes other
than flotation-such as for hunting, wading, and swimming. And
it recognizes a right of a landowner to seek an injunction
against a person who uses a streambed in a manner exceeding
the scope of the statutory easement. See id. §
VR Acquisitions is a private property owner who has sought to
invoke this statutory remedy. VR owns property along a
four-mile stretch of the Provo River. It operates Victory
Ranch, which limits fishing in its streams to invited guests.
Citing the PWAA, VR asserted a right to exclude the public
from wading in water of the Provo River that flows through
its land. This included members of USAC who sought to fish in
the Provo River by wading in the streambed on VR's land.
At least one USAC member was expelled from VR's land as a
trespasser-with the help of local law enforcement, who not
only ordered him off the land but also cited him for criminal
trespass. VR then posted "no trespassing" signs,
asserting its reliance on the terms of the PWAA.
USAC challenged these actions by filing this lawsuit.
USAC's complaint, filed in 2011, challenged the
constitutionality of the PWAA on three grounds: (1) that it
infringed USAC members' "rights to the use of any of
the waters in this State for any useful or beneficial
purpose" guaranteed in article XVII, section 1 of the
Utah Constitution; (2) that it ran afoul of the "public
trust" doctrine as established in article XX, section 1
of the Utah Constitution; and (3) that it alternatively
violated the public trust principles set forth in federal
common law, such as those established in Illinois Central
Railroad Co. v. State of Illinois, 146 U.S. 387 (1892).
District Court's Decision
The district court granted partial summary judgment against
USAC. It held that the PWAA did not violate article XVII or
the public trust doctrine in federal common law. As to
article XVII, the court concluded that the public easement
recognized in Conatser amounted to a "right
to the use of . . . the waters in this State for any useful
and beneficial purpose," protected by the Utah
Constitution. But it held that the legislature retains broad
discretion to regulate water rights under article XVII, and
thus that the PWAA withstands scrutiny under this provision.
As to the federal common law public trust doctrine the court
held that that doctrine applies only to navigable waters-and
thus does not extend to the stretch of the Provo River in
question (which is not alleged to be
The district court denied summary judgment on the article XX
claim, however. It held that the protections of article XX,
section 1 extend to the public easement right in question but
concluded that disputed questions of fact precluded summary
judgment and required a trial on the merits.
In holding that the public easement right asserted by USAC
was an interest covered by article XX, section 1, the
district court made a series of determinations of relevance
to the constitutionality of the PWAA. It held that the
easement right claimed by USAC was an "interest in
land" protected by article XX, section 1. It also
implicitly held that this interest had been
"acquired" by the State under the terms of article
XX. And it concluded that the acquired interest in land had
been "disposed of" in a manner triggering the
protections of the public trust doctrine enshrined in the
The court reserved for trial the question whether the
PWAA's disposition of the public easement ran afoul of
the public trust doctrine protected by article XX, section 1.
At trial, the court applied a standard that it viewed as
dictated by the Illinois Central decision-a standard
allowing the State to dispose of public trust property so
long as the disposition doesn't "substantially
impair the public interest in the lands and waters
remaining." See Illinois Cent. R.R. Co. v.
Illinois, 146 U.S. 387, 452 (1892). Thus, the principal
focus of the court at the bench trial was the question
whether the PWAA "substantially impair[ed] the public
interest in the lands and waters remaining," which the
court defined as all fishable rivers and streams in Utah.
After hearing all the evidence the district court concluded
that the PWAA ran afoul of article XX, section 1 because it
substantially impaired the right of Utah fishers to recreate
in public waters. Specifically the court found that the PWWA
"closed more than 2, 700 miles of [fishable] rivers and
streams to any public recreational use other than
floating." And because that "represents closure of
43%" of fishable rivers and streams "to almost all
public recreational use," the court held that the PWAA
exceeded the bounds of the legislature's authority under
article XX, section 1.
VR Acquisitions and the State appealed the district
court's determination that the PWAA violated article XX,
section 1. USAC cross-appealed on one issue-asserting that
the district court had erred in defining the "lands and
waters remaining" as all waters in the state rather than
excluding waters traversing federal land.
In their briefing on appeal the parties put before us a
series of questions implicated by the terms of article XX,
section 1. Those questions include (1) whether the easement
recognized in Conatser is a "land of the
State"; (2) whether such land has been
"acquired" in a manner triggering the public trust
doctrine; (3) whether the State "disposed of" the
land as that term is used in the Utah Constitution; (4) the
applicable standard of scrutiny for assessing the
constitutionality of the PWAA under article XX, section 1;
and (5) whether the PWAA survives scrutiny under that
standard. We received initial and supplemental briefing on
these important questions.
We also sought supplemental briefing on a threshold question
of justiciability. In a supplemental briefing order issued
after oral argument we asked the parties to address the
question whether "a determination of the navigability of
the stretch of the Provo River in question [is] a necessary
antecedent to a determination of the constitutionality of the
Public Waters Access Act, rendering any opinion made before
determining the navigability an advisory opinion based on a
hypothetical state of facts."
The above questions are now presented for our review. Each of
the questions presented is a question of law. Our review is
accordingly de novo. See B.A.M. Dev., LLC v.
Salt Lake Cty., 2012 UT 26, ¶ 8, 282 P.3d 41.
The questions presented on appeal are extensive and
substantial. We must first address the question of
justiciability-of whether the lack of any determination of
the navigability of the relevant stretch of the Provo River
is a barrier to our deciding the merits of USAC's
constitutional claims (which assume a lack of navigability).
In the paragraphs below we conclude that the case as
presented to us on appeal is justiciable. We hold that USAC,
as plaintiff and master of its complaint, was entitled to
choose to avoid the navigability question and instead to
litigate the case on alternative grounds. And we conclude
that the lack of any litigation or decision on the
navigability question does not render our decision on the
questions presented advisory in nature or foreclosed under
the doctrine of constitutional avoidance.
That leads us to the merits of the case. Here we consider a
range of the issues raised by the parties in their
briefing-as to the nature of "lands of the State"
protected by article XX, section 1, what it means for the
State to "dispose" of such lands, and the
applicable standard of scrutiny for assessing the
constitutionality of the PWAA under article XX, section 1.
But we do not ultimately resolve this appeal on any of these
grounds. Instead we reverse and remand on what we see as an
important threshold error in the district court's
analysis-its (implicit) conclusion that the scope of the
easement recognized in Conatser v. Johnson 2008 UT
48, 194 P.3d 897 was an interest in land that was
"acquired" and "accepted" by the State at
the time of the ratification of the Utah Constitution in
1896. This is a crucial threshold question that could moot
the other issues presented in the case. And we reverse and
remand to allow the district court to resolve it as an
antecedent to our deciding the other important questions
presented for our review.
The public's right to touch the bed of a public waterway
may be established in either of two ways. If the waterway is
"navigable" then the streambed is open to use by
the public on that basis. PPL Mont., LLC v. Montana,
565 U.S. 576, 589 (2012) (noting that states, not private
parties, "hold title to the beds under navigable
waters"). The PWAA acknowledges this point. It affirms
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). We recently
clarified the governing standard of navigability under this
provision. In Utah Stream Access Coalition v. Orange
Street Development, 2017 UT 82, 416 P.3d 553, we held
that the navigability standard in the PWAA "invokes a
legal term of art embedded in federal law." Id.
¶ 3. And we clarified that this standard turns on
whether a given waterway is "'generally and commonly
useful to some purpose of trade or agriculture, '"
id. ¶ 31, or in other words as a
"'public highway of transportation, '"
id. ¶ 29 (quoting Utah Code §
The PWAA also recognizes an alternative basis for public
access to a streambed-in an easement right of a
"dominant" estate holder. Because the public has an
unquestioned right to use the waters of the state themselves
(even non-navigable ones), see Adams v. Portage
Irrigation, Reservoir & Power Co., 72 P.2d 648, 653
(Utah 1937), that right may also encompass an easement to
touch the streambeds of those waters, see Conatser v.
Johnson, 2008 UT 48, ¶ 19, 194 P.3d 897. And that,
in turn, requires an analysis of the relevant scope of the
public easement to be recognized.
USAC's claims in this case are focused on this second
theory. In the proceedings in the district court USAC made
clear that it was not asserting a navigability claim with
respect to the stretch of the Provo River at issue here.
USAC's claims, instead, have been rooted in ...