Utah Supreme Court Grapples With Public Recreational Access to Public Waters via Private Property

In Utah Stream Access Coalition v. VR Acquisitions, LLC (USAC II), the Utah Supreme Court completed another chapter in a long-running dispute over whether Utahns enjoy a right of access to private lands in order to use public waters. The court considered whether a historical basis existed for recognizing an easement granting that right.[1] In a unanimous[2] opinion written by Chief Justice Matthew Durrant, the court concluded that the evidence and arguments offered by the Utah Stream Access Coalition (USAC) “d[id] not establish any 19th-century basis for the existence of such an easement.”[3]

This question regarding the existence of “a public easement . . . for recreational use of public waters on private property”[4] has bounced around the legal system in Utah for well over a decade, and this latest iteration marks the Utah Supreme Court’s second decision on the issue in this very case.

This opinion appears to put an end to a legal controversy that began with the same court’s previous recognition fifteen years ago of just such an easement under modern common-law trust principles in Conatser v. Johnson.[5] Conatser itself built off an earlier decision in J.J.N.P. Co. v. State, where the court had recognized “a public easement over the water regardless of who owns the water beds beneath the water.”[6]

The Utah Legislature responded to Conatser in 2010 by passing the Public Waters Access Act (PWAA), a statute which explicitly sought to restore “the accommodation existing between recreational users and private property owners before the decision in Conatser v. Johnson.”[7] The PWAA codified a “public right to float on [any] public water” of sufficient width and depth—even on private land—including the rights to “incidentally touch private property as required for safe passage and continued movement,” to “portage around a dangerous obstruction in the water,” and to “fish while floating.”[8] Other than these activities, however, the PWAA “limits public recreational access to water flowing over streambeds that are privately owned,” and “[t]hose who violate the PWAA may be subject to civil liability and penalties for trespass.”[9] Importantly, the PWAA requires those who exercise the right of floating on public waters to “enter and exit the water [either] at a point on public property or [at a point on] private property with permission of the owner.”[10]

Prior to the enactment of the PWAA, the public engaged in boating and fishing on a stretch of the Provo River that crosses Victory Ranch, a property owned by VR Acquisitions. VR Acquisitions has exercised its rights under the PWAA, however, to “prohibit[] public access to the stretch of river flowing over Victory Ranch.”[11] As a result, USAC members have been cited for trespass while accessing the Provo River on VR Acquisitions’ property.[12] USAC sued VR Acquisitions, claiming that the PWAA violated both federal common law and various provisions of the Utah Constitution.[13]

USAC’s only argument to survive summary judgment contended that the PWAA violated a provision of the Utah Constitution regarding the disposition of “public lands.”[14] Following a bench trial, the district court found that the Conatser easement at issue in the case constituted an interest in land covered by the constitutional provision and thus held the PWAA unconstitutional.[15]

Both VR Acquisitions and the state of Utah appealed that judgment to the Utah Supreme Court,[16] leading to its first decision in this case.[17] Sidestepping a number of “significant constitutional questions” raised by the trial court’s ruling,[18] the Utah Supreme Court held that the district court had made a “threshold error” in “treat[ing] the Conatser easement as a matter beyond the legislature’s power to revise or revisit.”[19] The lower court had relied on J.J.N.P. Co. and Conatser in its decision, and its decision hence wrongly relied “on modern common law rather than constitutional principles.”[20] The court therefore remanded the case back to the district court with instructions to perform the threshold inquiry of determining “whether the Conatser easement was ‘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.’”[21] The absence of such a finding on this threshold question could then moot the various other substantive questions raised by the case.[22]

On remand, the district court “determined that the threshold question presented a mixed question of historical fact and law because both ‘historical facts including customary uses of public waterways in the late 19th-century’ and ‘historical evidence of public easement law’ were relevant to its resolution.”[23] The district court reopened discovery to address the threshold question, with the intention of conducting a second phase to consider whether the PWAA violated the state constitution if USAC prevailed in the first phase.[24] Following this new round of discovery, both VR Acquisitions and the state moved for summary judgment, relying on Harkness v. Woodmansee[25] to show that, at the time of statehood, “a public right-of-way over private property could be established in only three ways: by condemnation, dedication, or prescription.”[26] Moreover, “the doctrine of easement by custom was disfavored in Utah and elsewhere across the country” at the time.[27]

Even accepting all of USAC’s asserted facts about the actual historical public use of private waters in 19th-century Utah as true, the district court found that “USAC had not shown that the historical use of streambeds established a Conatser easement in the late 19th century.”[28] The customs and practices of 19th-century Utahns could not establish such an easement, nor could “the absence of trespass laws in the 19th century . . . convey [one] to the public.”[29] Finding no genuine disputes of material fact, the district court granted summary judgment for VR Acquisitions and the state because USAC had failed to make the threshold showing of a historical basis for recognizing a Conatser easement at the time of statehood.

USAC appealed, advancing three main arguments, but the Utah Supreme Court rejected all of them, affirming the district court’s grant of summary judgment.

First, USAC argued that “the district court erred in finding no material facts in dispute,” but the state supreme court held that “the district court’s decision did not rely on disputed material facts.”[30] It explained that, while “USAC presented historical facts that might suggest early Utahns accessed private land to use public waters, USAC ha[d] not identified any basis that legally allowed them to do so.”[31] Because the threshold question was a mixed question of law and fact, USAC could not “meet its burden . . . without pointing to a relevant legal standard that existed in the late 19th century.”[32] Although USAC offered “historical theological, cultural, political, social, and even legal perspectives” in defense of its position, these perspectives “are not legal standards, and easements are created as a matter of law, not custom or practice.”[33] Ultimately, the Utah Supreme Court credited the district court for having “examined the facts provided by USAC and conclud[ing] that USAC had not pointed to any legal authority showing that a Conatser easement was recognized in Utah in the late 19th century.”[34]

Second, USAC objected to the district court’s resolution of the threshold question in favor of VR Acquisitions, offering “four legal bases on which it claims a Conatser easement could have been established at the time of statehood.”[35] The court rejected each of these arguments in turn: (1) Modern caselaw postdating ratification of the state constitution cannot resolve the threshold question under the court’s prior ruling in USAC I,[36] (2) USAC offered evidence from historical practice for the existence of a 19th-century Conatser easement, but did not offer any legal basis (or source) for such an easement,[37] (3) USAC argued that the absence of trespass statutes in territorial Utah was “consonant with the existence of a Conatser easement,” but “the absence of early trespass laws did not negate the common law right to exclude,”[38] and (4) while USAC also advanced arguments based on 19th-century federal laws, these laws merely “define the scope of vested water rights for the appropriation of water; they do not validate USAC’s claim” for an easement that places “a burden on the land and has no impact on use of the corpus of the water.”[39]

Finally, USAC raised several public policy arguments in favor of re-recognizing the Conatser easement: Utahns’ constitutional right to fish, law from other western states recognizing “the public’s right to wade in public waters on private land,” and the economic impact (including lower tax revenue and fewer jobs) if the right is not recognized.[40] None of these arguments persuaded the court, as “the judiciary may ‘not interfere with enactments of the Legislature where disagreement is founded only on policy considerations and the legislative scheme employs reasonable means to effectuate a legitimate objective.’”[41]

The court concluded that USAC lost this case because it “was required to present to the district court both historical facts and relevant laws to support its argument,” and it only did half the job.[42] “[T]he facts that USAC presented were unaccompanied by any applicable legal authority supporting the creation or existence of a Conatser easement in Utah at the time of statehood.”[43] And “the modern caselaw USAC cites is inapplicable, the customs and practices of early Utahns are immaterial, Utah’s 19th-century trespass laws (or lack thereof) are insufficient, the referenced 19th-century federal laws are inadequate.”[44]

The key conceptual distinction underlying this conclusion is the court’s observation that “water and the land over which that water flows are quite different.”[45] A general right to the use of public waters exists in tension with the individual right of private landowners to exclude from their property. After a prior opinion from the Utah Supreme Court had rebalanced these competing interests, the state legislature responded by restoring the status quo ante. The court here declined to engage in a tug-of-war with a coordinate branch of government in the absence of actual legal authority for doing so.

The court’s parting thought before affirming the opinion below suggests the path forward for those who remain interested in securing public access to private waters in the manner once supported by Conatser: “the policy considerations USAC advances are better directed to the legislature.”[46] Having lost at the supreme court, USAC may continue its quest for stream access by returning to the state legislature and petitioning it to change, repeal, or rewrite the PWAA.

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