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Utah Court Supreme Court Remands Stream Access Case to District Court Due to Error

The Utah Supreme Court has held that its prior decision, recognizing a public stream access easement right “to touch privately owned beds of state waters in ways incidental to all recreational rights,” is not rooted in constitutional law, but is rather based in common-law easement principles. Common law decisions are subject to adaption or reversal by the legislature. Consequently, the Supreme Court remanded this action to the District Court to correct the error in treating the public’s stream access easement as a matter beyond the state legislature’s power to revise or revisit. [Utah Stream Access Coalition v. VR Acquisitions and State of Utah,2019 UT 7[

 

 Factual and Procedural Background:

This case touches on many complicated issues related to the public trust doctrine and the scope of the easement afforded to the public to utilize the waters of the state of Utah. In 2008, the Utah Supreme Court held that:

 

  • (1) 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; and (2) that such touching does not cause unnecessary injury to owners of private streambeds. 2019 UT 7, ¶ 13, citing Conatser v. Johnson, 2008 UT 48, ¶ 19.

Following this decision, the Utah State Legislature adopted legislation for the purpose of restoring the:

 

  • . . .accommodation existing between the recreational users and private property owners as it existed before the decision in Conaster. Id. at ¶ 14, citing UCA § 73-29-103(6).

This legislation, known as the Public Water Access Act (PWAA), significantly limited the Conatserdecision, by defining the scope of the public 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. Id. at ¶ 2, citingUCA § 73-29-202(2).

The instant case involves members of the Utah Stream Access Coalition (USAC), who were excluded from fishing and wading on a section of the Provo River that flows through property owned by Victory Ranch (VR). Citing the PWAA, VR expelled the USAC member from the land. The USAC member was escorted off the land by local law enforcement and was cited for criminal trespass. Id. at ¶ 17. USAC challenged these actions by filing this lawsuit and challenging the constitutionality of the PWAA on three grounds: 1) that it infringed upon USAC members’ rights to the use of any of the waters of this state for any useful or beneficial purpose, guaranteed in article XVII, § 1 of the Utah Constitution; 2) that it ran afoul of the “public trust” doctrine as established in article XX, § 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). Id. at ¶ 18

After many rounds of briefing, the state 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. The court found a “right[] to the use of … the waters in this state for any useful and beneficial purpose,” is protected by the Utah Constitution, but held the legislature retain broad discretion to regulate water rights under article XVII.Id. at ¶ 19. 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.) Id.

However, the court held that the protections of Article XX, § 1 extend to the public easement right in question, but concluded that there were disputed facts that required a trial on the merits. Id. at ¶ 20. The conclusion was underpinned by several determinations of the relevance of the constitutionality of the PWAA. The court held that the easement right claimed by USAC was an “interest in land” protected by Article XX, § 1. Id. at ¶ 21. This conclusion also implicitly held that this interest had been “acquired” by the state under the terms of Article XX, and that it had been “disposed of” in a manner triggering the protections of the public trust doctrine. Id. Following a hearing on the merits, the court concluded that the PWAA substantially impaired the right of Utah fishers to recreate in public waters. Id. at ¶ 23. Specifically, the court held that the PWAA closed 43 percent of fishable rivers and streams to almost all public recreational use, which exceeded the bounds of the legislature’s authority under Article XX, § 1. Id.

Both parties appealed and presented five questions for the Supreme Court to resolve. Those questions include: 1) whether the easement recognized in Conasteris 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, § 1; and 5) whether the PWAA survives scrutiny under that standard. Id. at ¶ 25.

 

The Supreme Court’s Decision‑Remand Due to Threshold Error

 The Court considered the issues presented, but did not ultimately resolve this appeal on those grounds. Rather, the Court reversed and remanded on what is described as an important threshold error in the District Court’s analysis. Specifically, the Court found an error with the District Court’s:

 

  • . . .implicit conclusion that the scope of the easement recognized in Conatser v. Johnson… 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. Id. at ¶ 29.

Article XX, § 1 of the Utah Constitution protects:

 

  • . . .all lands of the State that have been, or may hereafter be granted to the State by Congress, and all lands acquired by gift, grant or devise, … or that may otherwise be acquired …. UTAH CONST. art. XX, § 1.

Such lands are hereby “accepted” and “declared to be the public lands of the State.” Id. Finally, it provides that these lands:

 

  • . . .shall 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 granted, donated, devised or otherwise acquired.Id.

 

Distinguishing Public Easements

The District Court found that the public easement recognized in Conatseris an interest in land that is included in article XX, § 1. This holding is rooted in the understanding that the Conatserdecision, and prior decisions, “applied principles of real property law” in defining the public easement. 2019 UT at ¶ 58. This conclusion was challenged by the state and VR, which asserted several claims, including () that the public easement was not a “land[] of the State,” subject to the protections of Article XX, § 1; 2) the state has not disposed of any such lands; and 3) the District Court applied the wrong standard in its application of the public trust doctrine. Id. at ¶ 59. The Court addressed each of these arguments, but stopped short of resolving the case on these grounds.

Rather, the Court focused upon the above stated threshold error, which it held was fatal to the District Court’s decision. The Court’s analysis of that issue revolves around the question of whether or not the easement in question was “acquired” or “accepted” by the state. The Court noted that the language of Article XX, § 1, identifies several means of acquisition that require the participation of the state (such as gift, grant or devise). Id. at ¶ 83. Consequently, the Court recognized that there is an outstanding question of whether the easement in question fits under the scope of Article XX, § 1. However, this question was left for another day as the Court concluded that the District Court had implicitly answered this question in the affirmative, by concluding the Conatsereasement was protected under Article XX, § 1.

The Court deemed this a threshold error, which misapplied the ruling in Conatser.Idat 86. Consequently, the Court now holds that the correct analysis should target the “historical scope of a public easement in use of public waters at the time of the framing of the Utah Constitution.” Id. In order to rise to the level of lands “acquired” or “accepted” by the state, the easement would, at a minimum, have to be shown to be in line with the sort of public access right that our law would have dictated at the time of the framing of the Utah Constitution. Id. at ¶ 88.

 

Conclusion and Implications

This decision is yet another chapter in a long-standing conflict. The Utah Supreme Court, ultimately declined to resolve the primary issues in this action, preferring to remand for the resolution of a threshold error. The Court’s conclusion that Article XX, § 1 only protects those lands “acquired” or “accepted” by the state is very narrow in its application. There are few lands, other than the public easement over waters of the state, that would fall into this category. The implications of this decision may not extend much beyond the specific facts of this case. However, scope of the public trust may be significantly narrowed by this decision.

The Utah Supreme Court Decision may be found at: https://www.utcourts.gov/opinions/supopin/Utah%20Stream%20v.%20VR%20Acquisitions20190220_20151048_7.pdf

(Jonathan Clyde)