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Utah Stream Access Coalition v. VR Acquisitions, LLC

Supreme Court of Utah

February 20, 2019

Utah Stream Access Coalition, Appellee and Cross-Appellant,
VR Acquisitions, LLC, and State of Utah, Appellants and Cross-Appellees.

          On Direct Appeal Fourth District, Wasatch County The Honorable Derek P. Pullan No. 100500558

          Craig C. Coburn, Zachary E. Peterson, John L. Young, W. Cullen Battle, Salt Lake City, for appellee and cross-appellant

          Eric P. Lee, Nathan D. Thomas, Elizabeth M. Butler, Salt Lake City, for VR Acquisitions, LLC

          Sean 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 amicus curiae

          Associate Chief Justice Lee authored the opinion of the Court, in which Justice Petersen and Judge Christiansen Forster joined.

          Justice Himonas filed an opinion concurring in part and dissenting in part, in which Chief Justice Durrant joined.

          Having recused himself, Justice Pearce does not participate herein; Court of Appeals Judge Michele M. Christiansen Forster sat.



         ¶1 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. ¶ 22.

         ¶2 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 id.

         ¶3 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.

         ¶4 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.

         ¶5 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.

         ¶6 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.

         I. Background

         A. Conatser v. Johnson

         ¶7 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.

         ¶8 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).

         ¶9 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 original).

         ¶10 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.

         ¶11 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.

         ¶12 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).

         ¶13 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.

         B. The PWAA

         ¶14 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).

         ¶15 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. § 73-29-205.

         C. USAC's Lawsuit

         ¶16 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.

         ¶17 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.

         ¶18 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).

         D. The District Court's Decision

         ¶19 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 navigable).[1]

         ¶20 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.

         ¶21 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 Utah Constitution.

         ¶22 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.

         ¶23 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.

         E. This Appeal

         ¶24 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.

         ¶25 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.

         ¶26 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."

         ¶27 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.

         II. Analysis

         ¶28 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.

         ¶29 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.

         A. Threshold Issues

         ¶30 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 § 73-29-102(4)).

         ¶31 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.

         ¶32 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 ...

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