Utah Supreme Court
February 20, 2019
2019 UT 7 (Click for text of opinion)
The Utah Supreme Court clarified that its decision in Conatser v. Johnson, recognizing a public easement right to touch privately owned beds of state waters incidental to recreation, was based on common law which can be overridden by statute, and was not a constitutional right.
Conatser v. Johnson held that there existed 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. The Utah State legislature responded by enacting the Public Waters Access Act (PWAA), Utah Code sections 73-29-101 to 73-29-208, which affirmed the right of the public to float on public water, and to incidentally touch private property for safe passage, but not to wade in the stream for hunting, fishing, swimming and other recreational uses.
The Utah Stream Access Coalition (USAC) filed a lawsuit asserting a constitutional right of its members to wade in waters of the Provo River flowing through land owned by VR Acquisitions, after at least one of those members had been criminally trespassed for fishing in a portion of the river owned by VR Acquisitions—who asserted a right to exclude based on the PWAA. The suit alleged that the PWAA had unconstitutionally restricted the easement recognized in Conatser. The district court agreed and struck down the PWAA under “public trust” principles in the Utah Constitution 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.
On appeal, the Utah Supreme Court reversed and remanded on the basis of a threshold error in the district court’s decision, in that the district court’s decision applied an erroneous treatment of the easement recognized in Conatser as a right rooted in constitutional soil that was “acquired” and “accepted” by the State under the terms of article XX, section 1. The Utah Supreme Court clarified that the analysis in Conatser was based only on common-law easement principles. And because a court’s common-law decisions are subject to adaptation or reversal by the legislature, The Utah Supreme Court held 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.