Utah Stream Access Coalition v. VR Acquisitions (USAC II)

May 22, 2023

Utah Supreme Court

2023 UT 9 (click for full text of opinion)

May 18, 2023

*Prior history, Utah Stream Access Coalition v. VR Acquisitions (USAC I), 2019 UT 7

The Utah Supreme Court definitively settled a longstanding dispute regarding public access to riverbeds by determining that there is no constitutional protection for the public’s right to touch privately owned streambeds underlying state waters.

In Conatser v. Johnson, the Utah Supreme Court 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 narrowed the Conatser holding by only affirming a 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 (“Coalition”) 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, and arguing 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 initial appeal, in Utah Stream Access Coalition v. VR Acquisitions (USAC I), 2019 UT 7, the Utah Supreme Court reversed and remanded on the basis of a threshold error in the district court’s decision, and instructed the court to first address whether the Conatser easement was in line with the sort of public access right that Utah law would have recognized at the time of the framing of the Utah Constitution. On remand, the district court ruled that the Coalition had not satisfied the threshold showing that there was a historical basis as a public easement at the time of the framing of the Utah Constitution, and entered summary judgment in favor of the property owners, VR Acquisitions. The Coalition appealed the ruling.

Here, on appeal after remand, the Utah Supreme Court reasoned that while the Coalition presented factual information that Utahns freely accessed privately owned streambeds in Utah in the late 19th century, those facts did not point to any legal right to do so. The Court determined that early Utah caselaw established that the public may only acquire a right of way over private property in three ways: by condemnation, by dedication, or by prescriptive use. Therefore, the Coalition’s claim that the easement was established in “custom and practice” was not a sufficient legal standard because easements are created as a matter of law, not custom or practice. Because the facts presented by the Coalition were unaccompanied by any applicable legal authority supporting the creation or existence of a Conatser easement in Utah at the time of statehood, the district court’s decision on remand to grant summary judgment against the Coalition was proper.