Utah Stream Access Coalition v. VR Acquisitions LLC

The Utah Supreme Court has (finally!) issued its decision in the case of Utah Stream Access Coalition v. VR Acquisitions LLC. This case is another progression in the stream access issue that has been bouncing between the courts and the Utah legislature for more than 10 years.

In the 2008 decision in Conatser v. Johnson, the Utah Supreme Court established a broad public easement to utilize the beds of Utah's waterways for recreational purposes. In response to this decision, the Utah legislature adopted the Public Water Access Act in 2010. The Act placed restrictions on the broad easement recognized under Conatser. Specifically, the Act restricted recreational access to water on public property and to waterways that are navigable. Another court case, Utah Stream Access Coalition v. Orange Street Development, litigated the navigability component of the Act, which resulted in a stretch of the Weber River being declared navigable and therefore open to public access.

In the VR Acquisitions case, USAC took a different approach and challenged the constitutionality of the Act under several different arguments. The VR Acquisitions case focused on a stretch of the Provo River that passes through private property and that has been shut off to public access by the property owner. The district court originally ruled against USAC on the majority of its claims challenging the Act. The district court did, however, ultimately rule that that Act violated the public trust doctrine found in Article XX, Section 1 of the Utah Constitution because the Act substantially impaired the right of Utah fishers to recreate in public waters. This decision was appealed to the Utah Supreme Court.

A significant portion of the Utah Supreme Court's decision focused on the procedural question of whether it was necessary for the parties to litigate the navigability of the stretch of the Provo River at issue before the parties could litigate the constitutional challenges to the Act. A dissenting opinion by Justice Himonas argues that until the parties litigate the navigability issue, it is uncertain whether the landowner or the State is the legal owner of the streambed of the Provo River; and without that determination, the parties should not be allowed to force a decision on the constitutional issues. The majority opinion, however, concludes that USAC was free to be the "master of its claim" and to waive certain claims and pursue other claims. Thus, the Court held that answering the navigability question was not a prerequisite to the Supreme Court reviewing and addressing the constitutional issues.

The Supreme Court then looked at the merits of the case and determined that some key, preliminary determinations had not been made by the district court with respect to the applicability of Article XX, Section 1 of the Utah Constitution. In particular, the Supreme Court noted that the district court had not determined whether the State had actually "acquired" or "accepted" the access easement (as described in the Conatser decision) at the time of the framing of the Utah Constitution. The Supreme Court noted that the Conatser easement was rooted in common law easement principles, and that the legislature is allowed to modify --and even reverse--common law decisions through legislation. Thus, the Supreme Court reversed the district court's decision and remanded the case to the district court to allow USAC an opportunity to "establish a historical, 19th-century basis for the easement that it seeks to root in Article XX, Section 1 of the Utah Constitution." If USAC is unable to carry this burden, then the district court will most likely rule that the Act was a proper exercise of the legislative power.

The Supreme Court also raised other issues that the district court should consider on remand (assuming USAC is able to successfully navigate the preliminary issue discussed above). First, the Supreme Court noted that although the Conatser easement is certainly an interest in the land, such an interest in land may not qualify as a "land of the State" that is protected under the Utah Constitution. Second, the Supreme Court raised the issue of whether the Act "disposed" of public land or simply managed/regulated the public land. Third, the Supreme Court questioned the district court's interpretation and application of the public trust standards set out in the U.S. Supreme Court case of Illinois Central Railroad Co. v. State of Illinois.

In sum, the Supreme Court's decision means that the Act is no longer considered unconstitutional, as the district court had previously concluded. The case will return to the district court, where the parties will have to litigate the issues raised by the Supreme Court -- most importantly the question of whether the Conatser easement is based on modern common law or whether it can be based on accepted law at the time of Utah's statehood in the 19th century.

To read the full opinion, click here.