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Our Water, Your Land

"OUR WATER, YOUR LAND":

PUBLIC ACCESS OVER PRIVATELY

OWNED BEDS OF NON-NAVIGABLE

WATERS-THE UTAH SUPREME COURT'S

DECISION IN CONATSER V. JOHNSON

Dale F. Gardiner

H. Michael Keller

Van Cott, Bagley, Cornwall & McCarthy

Salt Lake City, Utah

To the surprise of Utah farmers and property owners

and to the delight of fishermen and recreationalists, the

Utah Supreme Court ruled last summer in Conatser v.

Johnson, 2008 UT 48, 193 P.3d 897 that the public's

easement in Utah waters applies to the privately owned

beds underlying non-navigable waters. Navigable

waters (for purposes of determining the title to the bed

of such waters) include water courses which have the

capacity to be used for commerce in the water's

natural state without the aid of artificial means. Monroe

v. State, 175 P.2d 759, 761 (Utah 1946). If the

waters were navigable when Utah was admitted to the

Union in 1896, the state owns the underlying water

bed. If not, the property owner does. Id. at 760.

The Conatser decision is particularly interesting,

because, unlike some Western states (see, e.g., IDAHO

CODE § 36-1601), Utah has no statute explicitly

providing a public right to recreational use of the state's

waters. The Utah Supreme Court has now defined that

right judicially, and competing stakeholders are

evaluating whether and how to preempt, modify, or

solidify the decision legislatively. Efforts to repeal or

modify the decision in the recent general session of the

Utah Legislature were unsuccessful, and the issue has

been referred to interim study for future consideration.

The dispute between the Conatsers and the Johnsons

came to a head in June 2000, when the Conatsers, as

they had on prior occasions, launched their rubber raft

from a point of public access into the Weber River, a

popular and readily accessible Utah trout stream, and

began floating and fishing the river. They floated over

private property owned by the Johnsons and came into

occasional contact with the bed of the river on the

Johnsons' property. In addition to touching the bed of

the river with the bottom of the raft, the paddles, and

fishing tackle, Kevin Conatser occasionally got out of

the raft and walked alongside it to fish. He also moved

fencing the Johnsons had strung across the river. As

they had done on prior occasions, the Johnsons

ordered the Conatsers off the river and told them to

pick up their raft and carry it out along a parallel

railroad easement. The Conatsers refused and

continued floating down the river. When they exited at

a public access point, the Morgan County Deputy

Sheriff cited them for criminal trespass.

After the Morgan County Justice Court found the

Conatsers guilty of criminal trespass, they appealed

their conviction and in the meantime filed a civil action

against the Johnsons in state district court seeking a

judicial declaration of their recreational rights to use the

Weber River where it crossed private land. Although

prosecutors dismissed the criminal trespass charge

based on uncertainty regarding the Conatsers' status as

trespassers, the civil suit proceeded and resulted in a

decision that the Conatsers' right to touch the river bed

was only incidental to their right to float upon the river

and did not allow them to wade or walk along the river

except as necessary to continue floating. Conatsers

appealed, contending their right as members of the

public to access waters of the state of Utah included

the right to walk on the bed of the Weber River and

wade in its waters, even where the bed was privately

owned.

The Utah Supreme Court ruled the public's easement

in non-navigable state waters includes not only the right

to recreate on the water over private property, but also

to touch the water's bed while utilizing the water for

lawful recreational activities. The easement includes

"the right to float, hunt, fish and participate in all

lawful activities that utilize State waters," 2008 UT

¶ 23 and 25 (emphasis added). Swimming and wading

were singled out by the court as examples of lawful

activities. Id.

Moreover, the court found the public's use of a

privately owned river bed is not a taking of property

without just compensation because the public easement

always existed. The Conatser court explained:

    Touching a water's bed in association with other

    easement rights is merely part of the existing

    burden-it is not an additional burden and thus is

    not more injurious to landowners. Conatser, 194

    P.3d at 902, 903.

The court also stated that the public's perpetual

easement comes with four limitations to protect a

landowner's interests. First, the public may engage

only in lawful recreational activities. Second, those

actions must utilize the water. When utilizing the waters

is not the purpose, the activity is beyond the scope of

the easement. Third, the public must act reasonably in

touching the river bed. Lastly, the public recreational

use may not cause unnecessary injury to the

landowner. Conatser, 194 P.3d at 903.

From what legal foundation did this always existing

recreational easement arise? The Conatser court

began by citing from Utah's Water and Irrigation Code:

"[a]ll waters in this state, whether above or under the

ground are hereby declared to be the property of the

public, subject to all existing rights to the use thereof."

See, UTAH CODE ANN. §73-1-1. Consequently, when

this statute was adopted in 1933, Utah waters, for the

most part, became public. See, e.g., Adams v.

Portage Irrigation Reservoir & Power co., 72 P.2d

648, 652 (Utah 1937). The Conatser court declared:

    Under this doctrine of public ownership, the public

    . . . has an easement over the water regardless of

    who owns the water beneath. In granting the

    public this easement, state policy recognizes an

    interest of the public in the use of State waters for

    recreational purposes. Conatser, 194 P.3d at 900.

The court relied substantially on its earlier decision in

J.J.N.P. Co. v. State, 655 P.2d 1133 (Utah 1982),

regarding the extent of the public's recreational rights

to the waters of a natural lake surrounded entirely by

private land. The J.J.N.P. court had reasoned that

because UTAH CODE ANN. §§ 73-3-8 and 73-3-29

require the State Engineer to consider recreational uses

when considering an application to appropriate water,

or to relocate a stream, there must be a recreational

use easement over the water regardless of who owns

the bed beneath the water. J.J.N.P., 655 P.2d at 1133.

The easement recognized in J.J.N.P provided the

public the right to float leisure craft, hunt, fish, and

participate in any lawful activity when utilizing that

water. Id. at 1137. In J.J.N.P., however, the court

explicitly declined to determine whether the public had

any easement in the beds of streams or lakes. The

Conatser court substantially expanded the public rights

recognized in J.J.N.P by explicitly holding "the public

has the right to touch privately owned beds of state

waters in ways incidental to all recreational rights

provided for in the easement." 194 P.3d at 901-02.

Previously, the statutory declaration in UTAH CODE

ANN. § 73-1-1 that waters within Utah were public

waters had not been understood to mean that any

individual, group, or governmental entity necessarily

had a right to a particularized recreational or other use

of the water. Utah is water appropriation state, and,

therefore, the right to use water in Utah flows not from

the declaration that the waters are public, but instead,

from appropriating the water and putting it to a

beneficial use authorized by the statute. Utah courts

have repeatedly declared that "Beneficial use is the

basis, the measure and the limit of all rights to use of

public water." See, e.g., Gossner v. Utah Power &

Light, 612 P.2d 337 (Utah 1987). In Utah, the state

regulates the use of the water, in effect, as trustee for

the benefit of the people, Tanner v. Bacon, 136 P.2d

957, 966-967 (Utah 1943) (Larson, J. concurring).

Technically, there is no "ownership" of public water, as

only the right to use water can be subject to

ownership. In re Uintah Basin, 2006 UT 19, 133

P.3d 410.

Interestingly, in Utah, recreational in-stream flow water

rights may only be acquired by the State Division of

Wildlife Resources or the Division of Parks and

Recreation. See UTAH CODE ANN. § 73-3-3(11).

Further, before granting an application to appropriate

water, or to relocate a stream, the State Engineer must

determine whether the application will "unreasonably

affect public recreation, or the natural stream

environment." UTAH CODE ANN. §§ 73-3-8(1) and 73-

3-29(4). Utah's water statute, however, says nothing

explicit about any public easement for recreational

activities in waters or on their underlying beds.

In Conatser, the Utah Supreme Court ruled that

because Utah's water code requires the State Engineer

to consider whether an application to appropriate

water or relocate a stream unreasonably affects public

recreation, there must exist a public easement for

recreation not only for activities upon the water but

also for all lawful activities that utilize the water.

Conatser, 194 P.3d at 901. The court then reasoned

that because an easement holder also enjoys the

privilege to do such acts as are necessary to enjoy the

easement, the public's recreational easement for

utilizing Utah waters includes the right to touch the river

bed in a reasonable manner. In summary, the easement

provides the public the right in Utah to touch privately

owned beds of state waters in ways incidental to

utilizing the waters for floating, hunting, fishing, wading,

swimming, and all other lawful recreational activities, so

long as they do so reasonably and cause no

unnecessary injury to the landowner. Id. at 902.


Published in the May 2009 ABA Water Resources Committee Newsletter