This opinion is subject to revision before final

publication in the Pacific Reporter

2019 UT 7

IN THE

SUPREME COURT OF THE STATE OF UTAH

UTAH STREAM ACCESS COALITION,

Appellee and Cross-Appellant,

v.

VR ACQUISITIONS, LLC, and STATE OF UTAH,

Appellants and Cross-Appellees.

No. 20151048

Filed February 20, 2019

On Direct Appeal

Fourth District, Wasatch County

The Honorable Derek P. Pullan

No. 100500558

Attorneys:

Craig C. Coburn, Zachary E. Peterson, John L. Young, W. Cullen 

Battle, Salt Lake City, for appellee and cross-appellant

Eric P. Lee, Nathan D. Thomas, Elizabeth M. Butler, Salt Lake City, 

for VR Acquisitions, LLC

Sean D. Reyes, Att’y Gen., Tyler R. Green, Solic. Gen., Thom D. 

Roberts, Asst. Att’y Gen., Stanford E. Purser, Deputy Solic. Gen., Salt

Lake City, for State of Utah

Michael D. Zimmerman, John J. Hurst, Salt Lake City, for amicus 

curiae

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in 

which JUSTICE PETERSEN and JUDGE CHRISTIANSEN FORSTER joined.

JUSTICE HIMONAS filed an opinion concurring in part and dissenting 

in part, in which CHIEF JUSTICE DURRANT joined.

Having recused himself, JUSTICE PEARCE does not participate herein; 

COURT OF APPEALS JUDGE MICHELE M. CHRISTIANSEN FORSTER sat.
UTAH STREAM ACCESS COALITION v. VR ACQUISITIONS

Opinion of the Court

2

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:

¶1 In Conatser v. Johnson we recognized 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. Citing common-law easement principles, we held that the 

“incidental right of touching the water’s bed is reasonably 

necessary” to the public’s right not just to float on the water but also 

to wade in waters for hunting, fishing, swimming, and other forms 

of recreation. Id. ¶¶ 22–25. And we concluded that an easement right 

of incidental touching “does not cause unnecessary injury to the 

landowner.” Id. ¶ 22.

¶2 The legislature responded by enacting the Public Waters 

Access Act (PWAA), Utah Code sections 73-29-101 to 73-29-208. That 

statute affirms the right of the public to “float on public water,” id.

§ 73-29-202(1), and to “incidentally touch private property as 

required for safe passage and continued movement” and “portage 

around a dangerous obstruction in the water,” id. § 73-29-202(2). But 

it also restricts the scope of the Conatser easement—by limiting the 

easement to incidental touching and portage, without any 

recognition of a right to wade in the stream for hunting, fishing, 

swimming and other recreational uses. See id.

¶3 This lawsuit ensued. The case was filed by the Utah Stream 

Access Coalition (USAC), an organization committed to maintaining 

public access to rivers and streams throughout Utah. In a complaint 

filed in the Fourth District Court USAC asserted a constitutional 

right of its members to wade in waters of the Provo River flowing 

through land owned by VR Acquisitions. And it alleged that the 

PWAA had unconstitutionally restricted the easement recognized by 

this court in Conatser. The district court agreed. It struck down the 

PWAA under “public trust” principles set forth in article XX, section 

1 of the Utah Constitution—a provision 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.

¶4 We reverse and remand on the basis of a threshold error in 

the district court’s decision. The threshold error goes to the nature of 

the easement as recognized in the Conatser case. The district court 

treated that easement as a right rooted in constitutional soil. It 
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Opinion of the Court

3

accordingly deemed that right to be one “acquired” and “accepted” 

by the State under the terms of article XX, section 1. We reverse on 

the basis of an error in the district court’s disposition of this issue. 

We clarify that our analysis in Conatser was based only on commonlaw easement principles. And because this court’s common-law 

decisions are subject to adaptation or reversal by the legislature, we 

hold 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.

¶5 The district court struck down the PWAA on constitutional 

grounds. In so doing it resolved some important questions of 

constitutional law. It treated the Conatser easement as a “land[] of the 

State” covered by article XX, concluded that such land had been 

“disposed of” by the State, and held that the PWAA’s regulation of 

such land ran afoul of the “public trust” doctrine established in this 

provision. We stop short of resolving the core elements of USAC’s 

constitutional challenge to the PWAA because we reverse instead on 

the basis of the above-noted threshold error. In reversing on this 

basis we do not foreclose the possible viability of the district court’s 

ultimate disposition of this case. We explain that it may be possible 

for USAC to demonstrate on remand that there is a basis in historical 

fact—in the understanding of public easements in the late 19th 

century—for the easement we recognized in Conatser. And we leave 

it open to USAC to seek to make such a showing on remand.

¶6 These are significant constitutional questions. And each of 

them has been addressed by the parties on this appeal. But they 

could also be mooted on remand if USAC fails to establish that the 

Conatser easement has a historical basis as a public easement as of the 

time of the framing of the Utah Constitution. With this in mind, we 

consider some of the parties’ arguments on these issues but decline 

to resolve them conclusively on this appeal.

I. BACKGROUND

A. Conatser v. Johnson

¶7 Our decision in Conatser v. Johnson arose out of a property 

rights dispute culminating in a criminal trespass action. 2008 UT 48, 

194 P.3d 897. The Johnsons owned private property over which the 

Weber River flowed. Id. ¶ 3. The Conatsers “put a rubber raft in the 

Weber River at a public access point” above the Johnson property 

and touched the riverbed as their raft floated over that property. Id.

“As they had done on at least two previous occasions, the Johnsons 

ordered the Conatsers off the river and told them to pick up their raft 
UTAH STREAM ACCESS COALITION v. VR ACQUISITIONS

Opinion of the Court

4

and carry it out via a parallel railroad easement.” Id. “The Conatsers 

refused and continued floating down the river.” Id. “When they 

exited at a public access point, the Morgan County Deputy Sheriff 

cited them for criminal trespass.” Id.

¶8 In a civil suit before the Second District Court the Conatsers 

argued that they were entitled to “‘recreate in natural public 

waters,’” including by “‘touch[ing] or walk[ing] upon the bottoms of 

said waters in non-obtrusive ways.’” Id. ¶ 4. The district court 

recognized a more limited public easement. It held that the 

Conatsers were limited to “activities that could be performed ‘upon 

the water,’—chiefly floating—and that the right to touch the river’s 

bed was incidental only to the right of floatation.” Id. ¶ 5. In so doing 

the district court relied on a decision from the Wyoming Supreme 

Court in Day v. Armstrong, 362 P.2d 137 (Wyo. 1961).

¶9 The Day decision “limited the scope of the public’s easement 

to the ‘right of floatation’ upon the water and allowed only those 

activities that could be done ‘while so lawfully floating.’” Conaster, 

2008 UT 48, ¶ 12. Citing Day, “the district court held that the 

Conatsers ‘may walk along the banks of the river . . . in order to 

continue floating . . . so long as [their] actions are as minimally 

intrusive as possible of the private owners’ land.’” Id. ¶ 5 (alterations 

in original). Yet it also held that “‘[w]ading or walking along the 

river, where such conduct is not incidental to the right of floatation

upon natural waters, would constitute a trespass of private property 

rights.’” Id. (alteration in original). 

¶10 We reversed. We first clarified that although “the public 

owns state waters, the beds that lie beneath those waters may be” 

either publicly or privately owned: “If a body of water is navigable—

that is, if it is useful for commerce and has ‘practical usefulness to

the public as a public highway’—then the state owns the water’s 

bed. If it is non-navigable, [however], then its bed may be privately 

owned.” Id. ¶ 9 (citations omitted). Next we noted that “[t]he 

public’s easement to use the water” nonetheless “exists 

‘[i]rrespective of the ownership of the bed and navigability of the 

water.’” Id. (second alteration in original). And we held that “the 

scope of an easement is a question of law,” id. ¶ 10, which we 

resolved by reference to standards set forth in common-law 

decisions in Utah and others states. 

¶11 We acknowledged but rejected the narrow public easement 

in private streambeds as recognized by the Wyoming Supreme 

Court in Day v. Armstrong. Id. ¶¶ 12–15. We explained that the 
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Opinion of the Court

5

question of the scope of the public easement in private streambeds 

was a matter of first impression in Utah and was not before us in 

J.J.N.P. Co. v. State, 655 P.2d 1133 (Utah 1982). See Conatser, 2008 UT 

48, ¶ 19 (citing J.J.N.P., 655 P.2d at 1138 n.6). And we proceeded to 

establish a broader public easement than the Wyoming Supreme 

Court recognized in Day, encompassing a right to touch streambeds 

for “all recreational activities that utilize the water,” including 

hunting. Id. ¶¶ 2, 14–15.

¶12 In so doing we invoked a common-law easement framework 

established in Big Cottonwood Tanner Ditch Co. v. Moyle, 174 P.2d 148, 

160 (Utah 1946), and 25 AM. JUR. 2D Easements and Licenses in Real 

Property §§ 1, 81 (2007). Id. ¶¶ 20–21. Thus, we held that “‘[a]n 

easement is a privilege which one person has a right to enjoy over 

the land of another.’” Id. ¶ 20 (citation omitted). And we indicated 

that “[t]he easement holder . . . enjoys ‘the privilege to do such acts 

as are necessary to make effective his or her enjoyment of the 

easement,’” meaning that the “easement holder has the right to make 

incidental uses beyond the express easement and does not exceed 

the easement’s scope if those uses are ‘made in a reasonable manner 

and they do not cause unnecessary injury to the servient owners.’” 

Id. ¶ 21 (citations omitted).

¶13 Our determination of the proper scope of the public 

easement in Conatser was based on our attempt to balance the 

competing interests of the owners of the dominant and servient 

estates. We struck that balance by holding (1) that “touching the 

water’s bed is reasonably necessary and convenient for the effective 

enjoyment of the public’s easement”—its right to “float, hunt, fish, 

and participate in all lawful activities that utilize state waters,” id. 

¶ 23; and (2) that such touching does not “cause[] unnecessary 

injury” to owners of private streambeds, id. ¶ 26.

B. The PWAA

¶14 The legislature was spurred to action in response to the 

Conatser decision. The legislature viewed Conatser as effecting a “real 

and substantial invasion of private property rights.” UTAH CODE 

§ 73-29-103(5). Through the terms of the PWAA, the legislature 

sought to restore “the accommodation existing between recreational 

users and private property owners” as it existed “before the decision 

in Conatser v. Johnson.” Id. § 73-29-103(6).

¶15 The PWAA recognizes a public right to “float on public 

water” that is wide enough and deep enough to float on. Id.

§ 73-29-202(1). It also preserves the right to “incidentally touch 
UTAH STREAM ACCESS COALITION v. VR ACQUISITIONS

Opinion of the Court

6

private property as required for safe passage and continued 

movement” and to “portage around a dangerous obstruction in the 

water.” Id. § 73-29-202(2). But the PWWA restricts the public 

easement to these terms. In so doing it limits the scope of the 

Conatser easement by foreclosing the right to touch a streambed for 

purposes other than flotation—such as for hunting, wading, and 

swimming. And it recognizes a right of a landowner to seek an 

injunction against a person who uses a streambed in a manner 

exceeding the scope of the statutory easement. See id. § 73-29-205.

C. USAC’s Lawsuit

¶16 VR Acquisitions is a private property owner who has sought 

to invoke this statutory remedy. VR owns property along a four-mile 

stretch of the Provo River. It operates Victory Ranch, which limits 

fishing in its streams to invited guests. Citing the PWAA, VR

asserted a right to exclude the public from wading in water of the 

Provo River that flows through its land. This included members of 

USAC who sought to fish in the Provo River by wading in the 

streambed on VR’s land. 

¶17 At least one USAC member was expelled from VR’s land as 

a trespasser—with the help of local law enforcement, who not only 

ordered him off the land but also cited him for criminal trespass. VR 

then posted “no trespassing” signs, asserting its reliance on the 

terms of the PWAA. 

¶18 USAC challenged these actions by filing this lawsuit. 

USAC’s complaint, filed in 2011, challenged the constitutionality of 

the PWAA on three grounds: (1) that it infringed USAC members’ 

“rights to the use of any of the waters in this State for any useful or 

beneficial purpose” guaranteed in article XVII, section 1 of the Utah 

Constitution; (2) that it ran afoul of the “public trust” doctrine as 

established in article XX, section 1 of the Utah Constitution; and 

(3) that it alternatively violated the public trust principles set forth in 

federal common law, such as those established in Illinois Central 

Railroad Co. v. State of Illinois, 146 U.S. 387 (1892). 

D. The District Court’s Decision

¶19 The district court granted partial summary judgment 

against USAC. It held that the PWAA did not violate article XVII or

the public trust doctrine in federal common law. As to article XVII, 

the court concluded that the public easement recognized in Conatser

amounted to a “right[] to the use of . . . the waters in this State for 

any useful and beneficial purpose,” protected by the Utah 

Constitution. But it held that the legislature retains broad discretion 
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Opinion of the Court

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to regulate water rights under article XVII, and thus that the PWAA 

withstands scrutiny under this provision. As to the federal common 

law public trust doctrine the court held that that doctrine applies 

only to navigable waters—and thus does not extend to the stretch of 

the Provo River in question (which is not alleged to be navigable).1

¶20 The district court denied summary judgment on the article 

XX claim, however. It held that the protections of article XX, section 

1 extend to the public easement right in question but concluded that 

disputed questions of fact precluded summary judgment and 

required a trial on the merits.

¶21 In holding that the public easement right asserted by USAC 

was an interest covered by article XX, section 1, the district court 

made a series of determinations of relevance to the constitutionality 

of the PWAA. It held that the easement right claimed by USAC was 

an “interest in land” protected by article XX, section 1. It also 

implicitly held that this interest had been “acquired” by the State 

under the terms of article XX. And it concluded that the acquired 

interest in land had been “disposed of” in a manner triggering the 

protections of the public trust doctrine enshrined in the Utah 

Constitution. 

¶22 The court reserved for trial the question whether the 

PWAA’s disposition of the public easement ran afoul of the public 

trust doctrine protected by article XX, section 1. At trial, the court 

applied a standard that it viewed as dictated by the Illinois Central

decision—a standard allowing the State to dispose of public trust 

property so long as the disposition doesn’t “substantially impair the 

public interest in the lands and waters remaining.” See Illinois Cent.

R.R. Co. v. Illinois, 146 U.S. 387, 452 (1892). Thus, the principal focus 

of the court at the bench trial was the question whether the PWAA

“substantially impair[ed] the public interest in the lands and waters 

remaining,” which the court defined as all fishable rivers and 

streams in Utah.

¶23 After hearing all the evidence the district court concluded 

that the PWAA ran afoul of article XX, section 1 because it 

_____________________________________________________________

1 The district court’s summary judgment decisions under article 

XVII and federal common law have not been challenged by USAC. 

They accordingly stand unchallenged and are not before us on this 

appeal.
UTAH STREAM ACCESS COALITION v. VR ACQUISITIONS

Opinion of the Court

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substantially impaired the right of Utah fishers to recreate in public 

waters. Specifically the court found that the PWWA “closed more 

than 2,700 miles of [fishable] rivers and streams to any public 

recreational use other than floating.” And because that “represents 

closure of 43%” of fishable rivers and streams “to almost all public 

recreational use,” the court held that the PWAA exceeded the 

bounds of the legislature’s authority under article XX, section 1. 

E. This Appeal

¶24 VR Acquisitions and the State appealed the district court’s 

determination that the PWAA violated article XX, section 1. USAC

cross-appealed on one issue—asserting that the district court had

erred in defining the “lands and waters remaining” as all waters in 

the state rather than excluding waters traversing federal land. 

¶25 In their briefing on appeal the parties put before us a series 

of questions implicated by the terms of article XX, section 1. Those 

questions include (1) whether the easement recognized in Conatser is 

a “land[] of the State”; (2) whether such land has been “acquired” in 

a manner triggering the public trust doctrine; (3) whether the State 

“disposed of” the land as that term is used in the Utah Constitution; 

(4) the applicable standard of scrutiny for assessing the 

constitutionality of the PWAA under article XX, section 1; and (5) 

whether the PWAA survives scrutiny under that standard. We 

received initial and supplemental briefing on these important 

questions.

¶26 We also sought supplemental briefing on a threshold 

question of justiciability. In a supplemental briefing order issued 

after oral argument we asked the parties to address the question 

whether “a determination of the navigability of the stretch of the 

Provo River in question [is] a necessary antecedent to a 

determination of the constitutionality of the Public Waters Access 

Act, rendering any opinion made before determining the 

navigability an advisory opinion based on a hypothetical state of 

facts.”

¶27 The above questions are now presented for our review. Each 

of the questions presented is a question of law. Our review is 

accordingly de novo. See B.A.M. Dev., LLC v. Salt Lake Cty., 2012 UT 

26, ¶ 8, 282 P.3d 41.

II. ANALYSIS

¶28 The questions presented on appeal are extensive and 

substantial. We must first address the question of justiciability—of 
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Opinion of the Court

9

whether the lack of any determination of the navigability of the 

relevant stretch of the Provo River is a barrier to our deciding the 

merits of USAC’s constitutional claims (which assume a lack of 

navigability). In the paragraphs below we conclude that the case as 

presented to us on appeal is justiciable. We hold that USAC, as 

plaintiff and master of its complaint, was entitled to choose to avoid 

the navigability question and instead to litigate the case on 

alternative grounds. And we conclude that the lack of any litigation 

or decision on the navigability question does not render our decision 

on the questions presented advisory in nature or foreclosed under 

the doctrine of constitutional avoidance.

¶29 That leads us to the merits of the case. Here we consider a 

range of the issues raised by the parties in their briefing—as to the 

nature of “lands of the State” protected by article XX, section 1, what 

it means for the State to “dispose[]” of such lands, and the applicable

standard of scrutiny for assessing the constitutionality of the PWAA 

under article XX, section 1. But we do not ultimately resolve this 

appeal on any of these grounds. Instead we reverse and remand on 

what we see as an important threshold error in the district court’s 

analysis—its (implicit) conclusion that the scope of the easement 

recognized in Conatser v. Johnson 2008 UT 48, 194 P.3d 897 was an 

interest in land that was “acquired” and “accepted” by the State at 

the time of the ratification of the Utah Constitution in 1896. This is a 

crucial threshold question that could moot the other issues presented 

in the case. And we reverse and remand to allow the district court to 

resolve it as an antecedent to our deciding the other important 

questions presented for our review.

A. Threshold Issues

¶30 The public’s right to touch the bed of a public waterway 

may be established in either of two ways. If the waterway is 

“navigable” then the streambed is open to use by the public on that 

basis. PPL Mont., LLC v. Montana, 565 U.S. 576, 589 (2012) (noting 

that states, not private parties, “hold title to the beds under 

navigable waters”). The PWAA acknowledges this point. It affirms 

that “[t]he public may use a public water for recreational activity if” 

it “is a navigable water.” UTAH CODE § 73-29-201(1)(a)(i). We recently 

clarified the governing standard of navigability under this provision. 

In Utah Stream Access Coalition v. Orange Street Development, 2017 UT 

82, 416 P.3d 553, we held that the navigability standard in the PWAA 

“invokes a legal term of art embedded in federal law.” Id. ¶ 3. And 

we clarified that this standard turns on whether a given waterway is 

“‘generally and commonly useful to some purpose of trade or 
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Opinion of the Court

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agriculture,’” id. ¶ 31, or in other words as a “‘public highway of 

transportation,’” id. ¶ 29 (quoting UTAH CODE § 73-29-102(4)).

¶31 The PWAA also recognizes an alternative basis for public 

access to a streambed—in an easement right of a “dominant” estate 

holder. Because the public has an unquestioned right to use the 

waters of the state themselves (even non-navigable ones), see Adams 

v. Portage Irrigation, Reservoir & Power Co., 72 P.2d 648, 653 (Utah 

1937), that right may also encompass an easement to touch the 

streambeds of those waters, see Conatser v. Johnson, 2008 UT 48, ¶ 19, 

194 P.3d 897. And that, in turn, requires an analysis of the relevant 

scope of the public easement to be recognized.

¶32 USAC’s claims in this case are focused on this second 

theory. In the proceedings in the district court USAC made clear that 

it was not asserting a navigability claim with respect to the stretch of 

the Provo River at issue here. USAC’s claims, instead, have been 

rooted in the notion of a public easement right to touch the 

streambed on the VR property.

¶33 That led to the justiciability questions that we raised in a 

supplemental briefing order—specifically, to whether USAC’s 

decision to eschew an allegation of navigability (as one basis for 

establishing access to the streambed in question) would render 

“advisory” our analysis of the easement basis for its claims. We now 

answer that question in the negative. We first conclude that this case 

is justiciable and thus properly presented for our review. We then 

respond to the dissent’s concern that our decision in this case should 

be foreclosed by the doctrine of constitutional avoidance.

1. Justiciability

¶34 The public has a right to use streambeds underlying

navigable waters within its borders. USAC could thus have asserted 

a claim that the relevant portion of the Provo River is navigable and 

that VR does not own the streambed. Yet it chose not to assert such a 

claim. Instead it asserted claims for relief under an alternative, 

easement-based theory of relief. And that was USAC’s prerogative as 

the plaintiff and master of its complaint.

¶35 We could characterize the navigability claim as antecedent 

to the easement-based claim. But we have never treated navigability 

as a necessary antecedent. We have left it to parties to make the 

strategic decision whether to pursue one or the other (or both) of 

these sorts of claims. In J.J.N.P. and Conatser, in fact, we established 

the opposite premise—that either claim may be advanced. Conatser, 

2008 UT 48, ¶ 9 (“The public’s easement to use the water . . . exists 
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‘[i]rrespective of the ownership of the bed and navigability of the 

water.’” (second alteration in original) (quoting J.J.N.P. Co. v. State, 

655 P.2d 1133, 1137 (Utah 1982))). And we adjudicated claims for 

access rights under an easement theory in both of those cases 

without any concern for the fact that a navigability theory might be 

logically antecedent. In J.J.N.P. we pursued that course even in the 

face of an actual claim of navigability. J.J.N.P., 655 P.2d at 1136.

¶36 This approach is consistent with a core component of our 

adversary system—the notion that the plaintiff is the master of the 

complaint. We leave it to the parties to plead claims and defenses in 

the time and manner designated by our rules. And for that reason

we are in no position to second-guess USAC’s decision to litigate an 

easement-based case by requiring it to seek broader 

(navigability-based) relief. 

¶37 USAC chose to sue only under the theory that its members 

have an easement right to access the Provo River—regardless of 

navigability. This was a strategic choice like that made by other 

plaintiffs in a range of cases. A plaintiff may often deem a particular 

course of litigation preferable to an alternative—because the 

alternative seems more costly, more time-consuming, less likely to 

succeed, etc. And we have never thought it our business to secondguess those judgments. See Combe v. Warren’s Family Drive-Inns, Inc., 

680 P.2d 733, 736 (Utah 1984) (“A court may not grant judgment for

relief” that is not “within the theory on which the case was tried”—

even if the evidence implies such relief.).

¶38 The mere possibility of an alternative claim for relief in no 

way renders the case nonjusticiable. If it did then our courts would 

often be in the business of reimagining the terms and scope of the 

cases presented for our decision. Consider a case involving 

alternative grounds for challenging a government taking of private 

property—one involving a broad challenge to the government’s 

power to condemn the property in the first place and the other 

seeking “just compensation” under the Takings Clause. Our cases 

have left it to the parties to decide which of these claims to pursue.2

_____________________________________________________________

2 Compare Utah Dep’t of Transp. v. Carlson, 2014 UT 24, 332 P.3d 

900 (challenging the Department of Transportation’s authority under 

Utah Code section 72-5-13 to condemn property for highway 

purposes), with Utah Dep’t of Transp. v. Admiral Beverage Corp., 2011 

(continued . . .)
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Opinion of the Court

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We could characterize the former (broader) claim as antecedent to 

the latter (narrower) claim. But that has never been thought to be a 

basis for a court to direct the parties to litigate the broad claim first. 

Instead we leave it to parties to make the strategic decision whether 

to pursue one or the other or both of these sorts of claims.

2. Constitutional Avoidance

¶39 The dissent acknowledges the justiciability of this case but 

still urges a course of avoidance of the merits. It views our decision

as “allow[ing] the parties to force us to address compound, 

complicated constitutional matters by contriving to skip over an 

obvious non-constitutional predicate issue.” Infra ¶ 96. And it 

charges that this is contrary to “long-held principle[s] of 

constitutional avoidance.” Infra ¶ 96. 

¶40 We disagree. The doctrine of constitutional avoidance does 

not require parties to advance claims that they have forfeited.

3 That 

doctrine respects our adversary system of justice. It leaves it to 

parties to decide which claims to advance and which ones to forgo.

¶41 Our law of civil procedure has long deferred to the plaintiff 

as the master of the complaint. An essential attribute of that role is 

the prerogative of identifying claims for relief to be submitted to the 

court for decision. We judges are neutral arbiters—not advocates. To 

police that distinction we keep ourselves out of the business of 

 

(continued . . .)

UT 62, 275 P.3d 208 (challenging the Department of Transportation’s 

method of assessing just compensation under the Utah Constitution). 

3 The dissent observes that USAC is aware of these claims and 

has asserted an intent to pursue them, or ask another party to pursue 

them, if it falls short on this appeal. Infra ¶ 98 n.8. True. But USAC 

has not made an alternative claim for relief under a theory of 

navigability in this case. And the possibility that USAC or others 

may try to litigate the navigability issue later does not give this court 

the power to force the litigation of the issue now. It is not at all clear, 

in all events, that USAC will be in a position to advance a 

navigability claim in a second round of litigation; such a claim may 

be barred as a matter of res judicata. 
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Opinion of the Court

13

second-guessing the pleading decisions of the parties. If USAC, as 

plaintiff, has forfeited the right to assert a navigability claim then we 

are in no position to reinstate it. 

¶42 The notion of party control over pleading is much more than 

a “pithy” adage. Infra ¶ 102. It is a key tenet of our judicial system—a 

tenet rooted in a core premise of our adversary system, under which 

parties plead and judges judge. We recently emphasized this point in 

the appellate setting. See In re Adoption of B.B., 2017 UT 59, ¶ 108, 417 

P.3d 1 (Lee, A.C.J., opinion of the Court on this issue). In the B.B.

case we explained that the “adversary system” ensures that parties, 

and not the court, have the power to assert claims of error on appeal. 

Id. We therefore held that it is the appellant that “bears the burden of 

identifying any and all orders being challenged on appeal.” Id. And

we expressly repudiated the judicial prerogative of a right to “search 

the record to ‘ensure’” that a case resolved below “is ‘as free as 

possible’ from any ‘defects’ we [may] deem ‘fatal’” on appeal. Id.

These same principles control here. The plaintiff, like the appellant, 

controls the claims to be litigated by the court. And the court lacks 

the power to second-guess the pleading decisions of the parties—to 

“search the record” for claims that were not pleaded by the parties 

but that we might prefer to resolve. See Combe, 680 P.2d at 736 

(holding that the “court may not grant judgment for relief” that is 

not “within the theory on which the case was tried”).

¶43 The dissent sees the unlitigated navigability theory not as a 

distinct “claim” but as a logical antecedent to the easement-based 

public trust basis for plaintiff’s case. Infra ¶ 101 n.11. The cited 

relationship between the parties’ claims is accurate as far as it goes—

the ownership-based (navigability) theory of relief could moot the 

easement-based (public trust) theory of relief. But that does not 

undermine the conclusion that these are distinct claims—or suggest 

that we have authority to require the plaintiffs to assert a broad 

claim for relief that they have chosen not to raise. 

¶44 The dissent seeks refuge for its contrary conclusion in the 

doctrine of constitutional avoidance. But that doctrine preserves—

and does not override—the principles of adversariness that we have 

cited. Our cases have never endorsed a principle of avoidance that

would allow us to force the parties to litigate claims that they have 

openly waived. And the cited cases from other jurisdictions are not 

controlling authority here. 

¶45 The dissent’s cases, moreover, do not establish a general 

judicial prerogative of requiring parties to litigate claims that they 

have waived or otherwise chosen to forgo. At most they identify one 
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Opinion of the Court

14

narrow circumstance—under the requirement of administrative 

exhaustion—in which a court may dismiss a constitutional claim on 

the ground that a non-constitutional claim should have been pleaded 

first. See W. E. B. DuBois Clubs of Am. v. Clark, 389 U.S. 309 (1967). But 

that exception is not implicated here. And the dissent’s other cases,

see Hosp. & Serv. Emps. Union Local 399, Serv. Emps. Int’l Union, ALFCIO v. NLRB, 743 F.2d 1417 (9th Cir. 1984); VNA Hospice of Maryland 

v. Dep’t of Health & Mental Hygiene, 961 A.2d 557 (Md. 2008);

Ainsworth v. SAIF Corp., 124 P.3d 616 (Or. Ct. App. 2005), are 

distinguishable.

4 Hospital & Service Employees Union involves a 

supplemental briefing order asking the parties to address a statutory 

predicate that was pleaded by the plaintiff and litigated in the 

proceedings below. VNA Hospice speaks only to the judicial 

prerogative of a court of last resort to reframe the issues presented 

_____________________________________________________________

4 The dissent laments our focus on the procedural posture of 

these cases. It suggests that in so doing we miss the “substantive 

point” that the cases articulate—that parties cannot force courts to 

resolve constitutional questions. Infra ¶ 105 n.13. That is one general 

premise of our judicial system. But it is only a general rule, subject to 

exceptions. And it is only one of several premises of our system. 

Another is the notion that courts are not in a position to force the 

parties to litigate claims they have forfeited. 

A party may sometimes be in a position to effectively require a 

court to decide a constitutional question. Where the plaintiff asserts 

only a constitutional claim, for example, the court will be left only to 

resolve that claim. And in that event the court may be left to enforce 

another fundamental tenet of our judicial system—that the plaintiff 

is the master of the complaint, and the court lacks authority to 

mandate the litigation of claims not pleaded.

The path to balancing the premises of our judicial system will 

necessarily depend on the procedural posture of an individual case. 

The devil will often be in the procedural details. And that is the case 

here. We cannot discern the breadth and force of a judicial statement 

of the principle of constitutional avoidance without examining the 

procedural background of the case in which such a statement is 

made. That is the reason for our focus here on procedure. Broad 

statements about constitutional avoidance must be understood in 

procedural context; otherwise we may mistake general rules subject 

to exceptions with hard-and-fast ones, or miss the need to balance 

one set of rules against another.
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Opinion of the Court

15

on certiorari to encompass non-constitutional grounds pleaded and 

litigated below. And Ainsworth stands for the uncontroversial 

proposition that an appellate court may consider new authority in 

resolving a claim that was properly pleaded and litigated.

¶46 The court in W. E. B. Dubois concededly declined to consider 

a constitutional claim presented by the parties. But the court was not

establishing a general mandate that plaintiffs plead and litigate nonconstitutional claims in the district court. It was enforcing a settled, 

narrow principle of administrative law—the rule of administrative 

exhaustion, which requires plaintiffs to exhaust their remedies in an 

administrative proceeding as a prerequisite to a constitutional 

challenge in court. See W. E. B. Dubois, 389 U.S. at 311–12 (declining 

to create an exception to the requirement of administrative 

exhaustion because “Congress has provided a way for appellants to

raise their constitutional claims” and plaintiffs did not avail 

themselves of that resource). That settled rule has no application 

here. And it does not support the approach proposed by the dissent.

¶47 The administrative exhaustion principle is the exception that 

proves the general rule. Our courts may mandate exhaustion of 

administrative claims that are viewed as necessary predicates to 

litigation of constitutional claims. See, e.g., Patterson v. Am. Fork City, 

2003 UT 7, ¶ 17, 67 P.3d 466 (affirming a lower court decision 

dismissing plaintiff’s claims because plaintiff failed to exhaust their 

administrative remedies). But otherwise we leave it to plaintiffs to 

decide whether to pursue litigation on constitutional or nonconstitutional grounds. 

¶48 The dissent’s other cases are not to the contrary. Hospital & 

Service Employees Union does include the warning that “we shouldn’t 

let litigants ‘force this court to decide . . . serious constitutional 

claim[s] by the simple expedient of not fully asserting a predicate . . . 

issue.’” Infra ¶ 97 (quoting Hosp. & Serv. Emps. Union, 743 F.2d at 

1425). But the “predicate” at issue in that case was not an entirely 

new claim that had not been pleaded or litigated below. It was a 

statutory basis for challenging an NLRB order requiring the union to 

cease and desist the distribution of certain handbills. And that 

statutory basis was obviously pleaded and litigated below—as it was 

the stated ground for the decision reviewed on appeal. See Hosp. & 

Serv. Emps. Union, 743 F.2d at 1421 (“A majority of the NLRB held 

that the Union’s handbilling and advertisements violated [the

statute] . . . .”). The union omitted that statutory predicate in its 

appeal to the Ninth Circuit—instead resting only on a constitutional 
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Opinion of the Court

16

claim. And the Ninth Circuit’s decision was just to order 

supplemental briefing on the omitted statutory claim. Id. at 1425.

¶49 We need not and do not decide whether that course would 

be appropriate in a case presented to this court. But we can say that 

the Hospital & Service Employees Union case presents a very different 

course of action than that proposed by the dissent. Here we are 

dealing with an entirely new claim that was neither pleaded by the 

parties nor litigated below. And Hospital & Service Employees Union

provides no basis for the mandatory consideration of such a claim.

¶50 VNA Hospice is similarly distinguishable. In that case the 

court also avoided a constitutional question by resolving the case on 

statutory interpretation grounds. See VNA Hospice, 961 A.2d at 572.

But the statutory interpretation claim at issue was pleaded by the 

plaintiff and litigated by the parties in the district court—and even 

on direct appeal. See id. Thus, in invoking the doctrine of 

constitutional avoidance in VNA Hospice, the Court of Appeals of 

Maryland was not requiring the parties to litigate a claim they 

actively waived. It was exercising its established discretion to frame 

the scope of its decision on certiorari—holding that the party’s 

“failure to raise [a] statutory interpretation question in its certiorari 

petition presents no impediment to this Court’s resolution of the case 

based upon our interpretation of the statute.” Id. This is a settled 

tenet of judicial discretion of a court of last resort on certiorari review. 

See Nichols v. Jacobsen Constr. Co., 2016 UT 19, ¶ 33, 374 P.3d 3 

(explaining while the court is typically guided by the order granting 

the certiorari petition, it is not precluded from reaching other, 

subsidiary issues fairly included in the question presented). It does 

not establish the sweeping power to actively mandate that parties 

plead and litigate a non-constitutional claim from the outset in the 

district court.

¶51 The Ainsworth case also falls short. That case involved a 

single question for review on appeal—the validity of “an 

administrative rule under which a worker who has sustained 

compensable brain damage from an injury cannot receive benefits 

for psychiatric impairment caused by the same injury even when the 

psychiatric impairment alone” is “more extensive than the organic 

brain damage alone.” Ainsworth, 124 P.3d at 617–18. On appeal from 

an administrative proceeding the claimant asserted that the rule was 

“inconsistent with” governing statutes “because those statutes 

require that compensation be based on the total extent of disability 

resulting from an injury.” Id. at 618. And it also argued that the rule 

ran afoul of “the equality guarantee” in the Oregon and United 
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Opinion of the Court

17

States Constitutions. Id. The statutory basis for challenging the 

administrative rule was not preserved in the administrative 

proceeding. Id. And the employer asked the Oregon Court of 

Appeals to ignore the claimant’s statutory authority in support of its 

challenge. Id. The Ainsworth court declined that request. In so doing 

it did not endorse a principle of sweeping appellate power to 

mandate the relitigation of a case on claims that were waived by the 

parties. It applied a settled principle of Oregon law of preservation—

allowing the presentation of additional authority for claims that 

were litigated below. See id. at 619 (noting that “‘the parties’ 

omission of a dispositive source or argument of ordinary law cannot 

compel a court to a needless constitutional decision’” (citation 

omitted)). That principle is consistent with our law in Utah. See

Patterson v. Patterson, 2011 UT 68, ¶ 18, 266 P.3d 828 (new authority 

may be presented on appeal without running afoul of law of 

preservation). And it can easily be accepted without endorsing the 

broader power proposed by the dissent.

¶52 The line between new “claims” and new “authority” to 

support existing claims is not always easy to draw. But our cases 

have identified factors of relevance to this distinction. Those factors 

make some cases straightforward—and nowhere close to the line. 

This is one of those cases. The navigability theory of relief is clearly a 

distinct claim, and thus not a matter falling within the principle set 

forth in Ainsworth.

¶53 In Patterson v. Patterson we emphasized the need to examine 

the policy premises of the preservation rule in distinguishing matters 

that must be preserved from those that need not be. We noted that 

the “semantics” of claim and argument cannot alone be sufficient. Id.

¶ 15. We instead urged the need to take into account the policy of 

“judicial economy” and the principle of “fairness.” Id. We noted that 

the “policy of judicial economy is most directly frustrated when an 

appellant asserts unpreserved claims that require factual predicates,” 

and thus concluded that “the preservation rule should be more 

strictly applied when the asserted new issue or theory ‘depends on 

controverted factual questions whose relevance thereto was not 

made to appear at trial.’” Id. (citation omitted). We also indicated, by 

contrast, that this policy is not offended by the consideration of “new 

authority relevant to issues that have properly been preserved.” Id.

¶ 18. And we emphasized that consideration of the new authority in 

Patterson could be “resolved purely as a matter of law” without a 

need for new factual development in the district court. Id. ¶ 20.
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18

¶54 These principles are consistent with the decision in 

Ainsworth but incompatible with the disposition proposed by the 

dissent. The statutory authority advanced in Ainsworth was a matter 

easily considered on appeal without the need for any factual 

development in the district court. The navigability claim identified 

by the dissent is different. We could consider it not for the purpose 

of assessing the correctness of the decision presented for our review 

on appeal, but only as an alternative basis for decision. The question 

of navigability, moreover, would require extensive discovery and 

factual development. Presumably that’s one reason why the 

plaintiffs in this case chose to forgo this claim. And it is also a basis 

for our conclusion that this is not a matter we may raise on our own 

accord on appeal.

¶55 The constitutional avoidance canon is a principle of judicial 

restraint. It recognizes that constitutional decisions bind other 

branches of government—in a manner precluding them from 

stepping into their usual policymaking role. And it accordingly 

dictates a preference for a judicial decision that avoids that problem. 

See Henry Paul Monaghan, On Avoiding Avoidance, Agenda Control, 

and Related Matters, 112 COLUM. L. REV. 665, 676 (2012) (noting that 

the courts have treated this form of avoidance as a discretionary 

matter of internal “governance” “designed to ameliorate the ‘friction 

between democratic principles and judicial authority’”).

¶56 The dissent’s proposed extension of this canon is not

restrained. If we directed parties to plead and litigate claims they 

have forfeited we would be taking an active step beyond the bounds 

of the judicial power defined by well-established rules of pleading, 

procedure, and preclusion. We would be pulling the rug out from 

seven years of investment in this case. That is not restraint. And it is 

not dictated by the canon of constitutional avoidance.

B. Merits Issues

¶57 That takes us to the merits. Article XX, section 1 protects 

“[a]ll lands of the State that have been, or may hereafter be granted 

to the State by Congress, and all lands acquired by gift, grant or 

devise, . . . or that may otherwise be acquired . . . .” UTAH CONST. art. 

XX, § 1. It says that such lands “are hereby accepted” and “declared 

to be the public lands of the State.” Id. And it provides that they 

“shall 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 granted, donated, devised or otherwise acquired.” Id.
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Opinion of the Court

19

¶58 The district court found that USAC had carried its burden of 

establishing the unconstitutionality of the PWAA under the above 

provisions. It held that the public easement recognized in Conatser is 

an interest in land that is “included in Article XX, Section 1.” It based 

that conclusion on the notion that this court’s decisions in J.J.N.P.

and Conatser “applied principles of real property law” in defining 

the public easement asserted by USAC. And it proceeded to 

conclude that the PWAA ran afoul of the public trust doctrine in 

article XX, section 1 because it “closed more than 2,700 miles of 

[fishable] rivers and streams to any public recreational use other 

than floating” and “substantially impaired the public’s interest in the 

lands and waters remaining” in the State. 

¶59 VR and the State have challenged several premises of the 

district court’s determination that article XX is implicated here. In 

the initial and supplemental briefs filed with the court, VR and the 

State have claimed that (1) a mere public easement is not a “land[] of 

the State” protected by article XX, section 1; (2) the State has not 

“disposed” of any such lands; and (3) the district court applied the 

wrong standard of scrutiny in its application of the public trust 

doctrine, in particular in its application of a standard from Illinois 

Central Railroad Co. v. State of Illinois, 146 U.S. 387 (1892). Each of 

these important questions is discussed below. But we ultimately stop 

short of resolving the case on these grounds because we find a 

threshold error that could potentially make these issues moot. 

¶60 We hold, in particular, that the district court erred in 

concluding that the easement as recognized in our decision in 

Conatser was a right that was “accepted” or “acquired” by the State 

at the time of the framing of the Utah Constitution. This was an 

implicit but necessary basis of the district court’s holding. And we 

find that it was in error because there was no inquiry into the 

historical basis for the Conatser easement—only an assumption that 

the easement is somehow rooted in the constitution. We reverse that 

determination because our analysis in Conatser was not 

constitutionally based. It was rooted in common-law easement 

principles. And the legislature is empowered to recalibrate and even 

reverse our common-law decisions. We accordingly reverse the 

district court’s decision and remand to give 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.

1. “[L]ands of the State”

¶61 VR asserts that the Conatser easement cannot constitute a 

“land[] of the State” because “[w]aters are not lands.” The State
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Opinion of the Court

20

makes a parallel argument. It seeks to frame the easement as a right

to use water, not land. And since the Conatser easement arose out of 

the public’s ownership of and right to use public waters, the State 

posits that the easement cannot be construed to be an interest in 

land.

¶62 These arguments misunderstand the nature of the easement 

at issue, however. The public undoubtedly has a right to recreate on 

public waters, a right expressly reserved in the PWAA. The effect of 

the Conatser decision, moreover, was to expand the scope of that 

right to touch privately-owned streambeds. So the district court was 

correct to consider the easement an interest in land because an 

easement to touch a streambed (land) is not an interest in water. 

¶63 Yet that conclusion is not in itself sufficient. Article XX, 

section 1 does not protect mere “interests” in land. It protects “lands 

of the State.” And that could make a difference in the ultimate 

disposition of the question whether a public easement could qualify 

as a “land[] of the State” protected by article XX, section 1. 

¶64 An easement is surely an interest in land. But the mere 

existence of such an interest may not be sufficient to trigger the 

protections of article XX, section 1. The key question concerns the 

scope of the public understanding of “lands of the State” as of the 

time of the framing of the Utah Constitution.

¶65 This is an important question. Yet a conclusive answer 

would require more extensive originalist analysis than that 

presented by the parties in their briefing to date. We may eventually 

need to decide this question (in a subsequent appeal, for example). 

We stop short of doing so here, however, because we find the issue 

premature in light of the crucial threshold error that we discuss in 

more detail below. See infra Part II.B.4.

2. “[D]isposed of as may be provided by law”

¶66 VR and the State also maintain that the PWAA does not 

violate article XX, section 1 because the act does not “‘dispose of’ any 

public land.” They propose to define “dispose” as “[t]o alienate or 

direct the ownership of property.” (Citing BLACK’S LAW DICTIONARY

1st ed. 1891). And they argue that the State has not ceded control 

over or alienated the land but has merely managed its trust property 

by regulating the scope of the easement. This regulation, in the view 

of VR and the State, is subject to rescission by a subsequent 

legislature and does not implicate article XX, section 1.
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Opinion of the Court

21

¶67 The State may have a point about the verb “disposed.” To 

“dispose of,” in the context of a reference to a property right, may 

most naturally be understood as a reference to the PWAA of 

“transferring something . . . by deed or will” or “relinquishing of 

property.” Disposition, BLACK’S LAW DICTIONARY (10th ed. 2014).

Article XX, section 1, after all, speaks of the disposition of lands “as 

may be provided by law,” and “for the respective purposes for 

which they have been . . . granted, donated, devised or otherwise 

acquired.” UTAH CONST. art. XX, § 1. In context, then, the “disposed 

of” clause may just be a reference to the back end of the real estate 

transaction that began with the acquisition of the land by grant, 

donation, or devise. And the “disposed of” clause may thus be 

speaking only about the terms of the State’s attempts to sell or 

otherwise devise public lands to another party.

¶68 This conclusion, however, may not foreclose USAC’s claims. 

Even if “disposed of” just means to sell or devise, the State would 

still have to deal with the “public trust” clause in article XX, section 

1. Article XX, section 1 does not just prescribe terms for the 

disposition of State lands. It also states that such lands “shall be held 

in trust for the people.” Id. This is at least arguably an independent 

duty attaching to public lands—a requirement that the State hold 

such lands “in trust for the people” while such lands are still owned 

by the State, and before they are sold or devised.

¶69 Again, however, as with the “lands of State” question, we 

decline to resolve these issues conclusively in light of a threshold 

error in the district court’s decision—an error that could moot the 

need for a final resolution of this and other questions presented in 

this case. 

3. The Standard of Scrutiny

¶70 VR and the State complain that the district court should 

have given more deference to the legislature’s judgment on how best 

to manage public lands and how to define the appropriate scope of

the prevailing public easement. They claim that “all nonnavigable 

waters” are “publici juris, subject to the plenary control of the 

designated states.” Cal. Or. Power Co. v. Beaver Portland Cement Co., 

295 U.S. 142, 163–64 (1935). And they maintain that the district court 

erred in second-guessing the legislature’s determination of the 

appropriate scope of the public easement in the PWAA.

¶71 In striking down the PWAA the district court relied on the 

standard set forth by the Supreme Court in Illinois Central Railroad 

Co. v. State of Illinois, concluding that the State could dispose of 
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Opinion of the Court

22

public land as long as the disposition did not “substantially impair 

the public interest in the lands and waters remaining.” 146 U.S. at

452. In so doing the district court defined the “waters remaining” as 

all fishable rivers and streams in Utah. VR and the State challenge 

this approach. They maintain that the “waters remaining” should 

include “flat water, such as lakes and reservoirs” as well as nonfishable waters that could be used for other recreational purposes. 

¶72 This implicates some important questions of state 

constitutional law. If the claimed easement is a “land[] of the State” 

that has been “disposed” of or otherwise triggers a public trust 

obligation, we would then have to identify the scope of the State’s 

public trust duties—or in other words the standard of scrutiny for 

the judicial assessment of the PWAA’s regulation of the public 

easement. 

¶73 It may be fair to conclude that the “trust” reference in article 

XX, section 1 would have been understood at the time of the framing 

of the Utah Constitution as invoking a term of art from existing case 

law, including (perhaps most prominently) the Supreme Court’s 

decision in Illinois Central.

5 But it is not at all clear that the district 

court’s balancing approach is compatible with the standard set forth 

in Illinois Central. We are skeptical of the idea that the public trust 

doctrine in article XX, section 1 allows the State to justify its 

restriction of the use of public lands on the ground that it has not 

“substantially impair[ed] the public interest in [other] lands and 

waters”—those that are deemed “remaining.” See id. We think Illinois 

Central may properly be read more narrowly. 

¶74 In Illinois Central the Illinois Legislature had granted title to 

a railroad company to a piece of submerged land consisting of a 

_____________________________________________________________

5 The Illinois Central decision, however, is not binding authority. 

That decision applied a standard of federal common law. And the 

question presented here concerns the meaning of a provision of the 

Utah Constitution—a question on which we alone have the final say. 

In so stating we do not mean to denigrate the significance of 

Illinois Central. As a decision handed down just three years before the 

ratification of the Utah Constitution, we think that Illinois Central

may help inform the search for the historical understanding of the 

public trust principles embedded in the Utah Constitution. And it is 

with that in mind that we outline some of our thinking on the 

significance of this case in the paragraphs below.
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Opinion of the Court

23

portion of the Chicago harbor. Id. at 433–44. That grant was 

challenged under the public trust doctrine. And the Supreme Court 

struck down the disposition on the ground that the submerged land 

was held in trust for the people and thus was “different in character 

from that which the state holds in lands intended for sale.” Id. at 452. 

In so doing the court set forth a standard for assessing the propriety 

of a disposition of public land under the common law public trust 

doctrine. And it made reference to certain dispositions of property 

that may constitute a “valid exercise of legislative power consistent[]

with the trust to the public.” Id. Those permissible dispositions 

included “grants of parcels of lands under navigable waters that 

may afford foundation for wharves, piers, docks, and other 

structures in aid of commerce, and grants of parcels which, being 

occupied, do not substantially impair the public interest in the lands 

and waters remaining.” Id.

¶75 The district court in our case interpreted this language as 

establishing a balancing test that would allow the courts to uphold 

the regulation or restriction of the use of certain public lands so long 

as other, “remaining” lands are not “substantially impair[ed].” But 

the Illinois Central opinion may not lend itself to that reading. In 

context, Illinois Central may simply be acknowledging the fact that 

some dispositions of public waters or lands may enhance the 

public’s use and enjoyment of that property. The court, in relevant 

part, seems to be clarifying that the disposition of land for “the 

erection of wharves, docks, and piers” could help the public “enjoy 

the navigation of the waters, carry on commerce over them, and 

have liberty of fishing therein.” Id. These dispositions, in other 

words, are seen as enhancing the public use of navigable waterways 

(the Chicago River and Lake Michigan). And the court seems to be 

concluding that the disposition of the property in question is 

permissible to the extent it does not “substantially impair the public 

interest in the lands and waters remaining.” Id.

¶76 In context, this does not seem to be an endorsement of the 

idea that Illinois could block public access to the Chicago River or 

Lake Michigan so long as it preserved access to a substantial number 

of other waterways. Indeed, the Illinois Central court at least arguably 

suggests the opposite. It does so in contrasting a disposition of 

property for “the erection of wharves, docks, and piers” with “the 

abdication of the general control of the state over lands under the 

navigable waters of an entire harbor or bay, or of a sea or lake.” Id. at 

452–53 (emphasis added). The latter sort of disposition seemingly is 

viewed as a gross infringement of the public trust doctrine. And that 

kind of disposition—of restriction of public access to an entire 
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Opinion of the Court

24

waterway—seems to be presented as a classic infringement of the 

public trust.

¶77 This suggests that the district court’s balancing in this case 

may not have been in line with the standard set forth in Illinois 

Central. And to the extent the Illinois Central test is in line with the 

public understanding of the public trust principles embraced in 

article XX, section 1, the district court may have erred in the standard 

of scrutiny that it applied.

¶78 We decline to announce a square holding on this issue, 

however, because we identify a clear basis for reversal in the district 

court’s threshold error. But we do note our skepticism of the district 

court’s reading of Illinois Central and of the standard of scrutiny that 

it attributed to that decision.

4. “[A]cquired” and “accepted” by the State

¶79 VR and the State contend that article XX, section 1 does not 

apply because the State has never “acquired” or “accepted” the 

Conatser easement. The parties go so far as to argue that the State 

cannot acquire the easement because the public, not the State, has 

ownership of public waters. And if the State cannot take ownership 

of the water, they argue, it cannot acquire a corollary easement to 

touch the streambeds. 

¶80 USAC, on the other hand, notes that article XX, section 1 

states that land that was “otherwise acquired” is subject to public 

trust principles. And USAC argues that “otherwise acquired” is a 

broad concept that encompasses all methods of acquisition. It notes 

that the State could have acquired the easement in the same way that 

the State acquired title to beds of navigable waters—“implicitly ‘by 

operation of law as an incident to the sovereignty of the state.’”

(quoting State v. Rolio, 262 P. 987, 990 (Utah 1927)). 

¶81 Again the parties have identified some important questions. 

But we need not and accordingly do not resolve all of them. We 

reverse and remand on the basis of one threshold error.

¶82 USAC is right to note that article XX, section 1 does not limit 

itself to acquisition by “gift, grant or devise.” UTAH CONST. art. XX, 

§ 1. The listed means of acquisition seem to be exemplary. Any 

acquisition seems to count—so long as the land is “otherwise 

acquired.” Id. But that does not necessarily mean that “acquired” is 

without content or limitation. Even broad catch-all terms are limited 

by context. See ANTONIN SCALIA & BRIAN A. GARNER, READING LAW:

THE INTERPRETATION OF LEGAL TEXTS 199 (2012) (noting that the 
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Opinion of the Court

25

ejusdem generis canon suggests that a general catch-all term at the end 

of a list should be interpreted in light of the characteristics of the 

specific terms in the list). 

¶83 And the listed means of acquisition (“gift, grant or devise”) 

seem to involve some participation of the State. And that could 

suggest that the State would likewise have to participate in a similar 

manner in accepting a public easement right to use the waters of the 

State. Otherwise the State could be saddled with managing even 

very dangerous, expensive property (like a hazardous waste dump) 

without any agreement on its part.

¶84 All of this suggests a possible basis for concluding that not 

all methods of acquisition would qualify under the terms of article 

XX, section 1. But again we do not render a conclusive decision on 

this question. We stop short of resolving it because we see a different 

defect in the district court’s decision—an alternative basis for our 

determination that there is no basis on the current record for the 

district court’s decision that the State “acquired” and “accepted” the 

public easement asserted by USAC. 

¶85 The threshold error that we identify is the district court’s 

determination that the public easement recognized in Conatser is an 

interest in land that is “included in Article XX, Section 1.” That 

decision was rooted only in the observation that in J.J.N.P. and 

Conatser we “applied principles of real property law.” That may be 

true. But there is a key unanswered question lurking in the 

background here. It concerns the nature and scope of that easement 

interest at issue—and whether it can be viewed as having been 

“acquired” and “accepted” by the State under the terms of article 

XX, section 1.

¶86 That determination cannot be made by mere reference to our 

analysis in J.J.N.P. and Conatser. In those cases we were not asked to 

analyze the historical scope of a public easement in use of public 

waters at the time of the framing of the Utah Constitution. And we 

did not make any such determination. We simply applied commonlaw trust principles in concluding (1) that the “touching” of a 

streambed “is reasonably necessary and convenient for the effective 

enjoyment of the public’s” right to “float, hunt, fish, and participate 

in all lawful activities that utilize state waters,” Conatser v. Johnson, 

2008 UT 48, ¶ 23 194 P.3d 897; and (2) that such touching does not 

“cause unnecessary injury” to owners of private streambeds, id. ¶ 22.

¶87 These conclusions were rooted in common-law trust 

principles that we imported from modern case law and a chapter 
UTAH STREAM ACCESS COALITION v. VR ACQUISITIONS

Opinion of the Court

26

from American Jurisprudence.

6 Id. ¶¶ 20–21. And if the scope of the 

easement established in Conatser is rooted only in common-law trust 

principles then the legislature is free to override our analysis. The 

legislature retains broad legislative power. UTAH CONST. art. VI, § 1 

(vesting “[t]he Legislative power of the State” in the house and 

senate). And that power encompasses the right to second-guess or 

override the standards set forth in our common-law decisions. See 

Anderson v. Bell, 2010 UT 47, ¶ 16 n.5, 234 P.3d 1147 (“It is a 

fundamental principle that . . . the legislature has the authority 

to abrogate the common law . . . .”).

¶88 This highlights the threshold error that we see in the district 

court’s decision. The mere fact that Conatser represents this court’s 

assessment of the proper scope of a common law public easement 

does not mean that that easement was “acquired” and “accepted” by 

the State. To rise to that level the easement would, at a minimum, 

have to be shown to be 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—and thus “acquired” and “accepted” by the State 

under the terms of article XX, section 1.

¶89 The governing provision of the Utah Constitution says that 

lands acquired by the State by any of a range of means—“by gift, 

grant[,] devise” or “otherwise”—are “hereby accepted.” UTAH 

CONST. art. XX, § 1. So a public easement dictated by our law in the 

late 19th century is at least arguably a “land” that was “accepted” by 

_____________________________________________________________

6 The same goes for the decisions we relied on in Conatser—

J.J.N.P. and Adams. J.J.N.P. Co. v. State, 655 P.2d 1133, 1136 (Utah 

1982) (holding the public had recreational rights in the waters of a 

lake even though it was surrounded by landowner’s property; 

applying common-law easement principles in concluding that “there 

is a public easement over the water regardless of who owns the 

water beds beneath the water”); Adams v. Portage Irrigation, Reservoir 

& Power Co., 72 P.2d 648, 652 (Utah 1937) (holding that waters in 

Utah are of two classes, private and public, and applying commonlaw principles in concluding that title to public waters “is in the 

public; all are equal owners”). 
Cite as: 2019 UT 7

Opinion of the Court

27

the State through ratification of article XX, section 1 of the Utah 

Constitution.7

¶90 That question was not resolved by the district court and it is 

not adequately presented for our disposition on appeal. We therefore 

reverse and remand to allow the parties to present further argument 

and analysis of this question to the district court in the first instance. 

We do so because we view this as a threshold question of 

significance in this important case—and because the disposition of 

this issue could moot the remaining questions presented to us on this 

appeal.

¶91 If the district court determines that the Conatser easement 

exceeds the scope of the public easement that would have been 

accepted under the law of the late 19th century, then that may be the 

end of this litigation. USAC, as noted, has placed all of its eggs in the 

easement basket in this litigation. It has rooted its article XX, section

_____________________________________________________________

7 In so stating we do not foreclose the possibility that an easement 

may not ultimately qualify as a “land[] of the State.” As noted above, 

supra II.B.1, we leave for another day the question whether an 

easement, as an undoubted interest in land, would have been deemed 

a “land[] of the State.” Our point here is just that there is a 

preliminary question whether the easement claimed by USAC (that 

set forth in Conatser) would have even been accepted by our law at 

the time of the framing of article XX.
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HIMONAS, J., concurring in part and dissenting in part

1 claim to access to the Provo River in the notion that the Conatser

easement is a public land that was acquired and accepted by the 

State, and subject to the public trust doctrine. If that premise fails 

because the scope of the Conatser easement is shown to be a product 

of common-law developments in the 20th and 21st centuries, then 

USAC would be in no position to assert that the State “acquired” or 

“accepted” any such easement at the time of the ratification of the 

Utah Constitution. And in that event USAC’s claim may be subject to 

dismissal.

¶92 If USAC can establish the historical premise of its claimed 

easement, however, then the district court may be placed in a 

position of resolving a range of the other issues highlighted above. It 

is with this eventuality in mind that we offer some guidance on the 

above issues. And we invite the district court to revisit some of the 

other premises of its initial decision in this case, which we hereby 

reverse and vacate, in light of the guidance we provide herein.

III. CONCLUSION

¶93 We recognize and respect the extensive time and effort that 

the district court and the parties have invested in the disposition of 

this important case. But we find that the district court’s decision 

suffers from a threshold error that we cannot resolve and that could 

render unnecessary any conclusive disposition of any of the other 

issues presented in this case. For that reason we reach only the 

threshold issue highlighted above. And we remand to allow the 

district court to manage the further litigation of this and other issues 

as they may arise.

¶94 In so doing we leave it to the able discretion of the district 

court to decide on the precise procedure for further proceedings on 

remand. It is unclear from our vantage point, for example, whether 

the case should be reopened for further discovery or whether the 

parties should be asked to simply present argument on the basis of 

material that is already in the record. The district court should 

decide that question in the first instance on remand. It should also 

decide on the procedure and ordering for decision on any of the 

other issues presented in this case—whether by further motion or a 

second bench trial.

JUSTICE HIMONAS, concurring in part and dissenting in part:

¶95 The doctrine of constitutional avoidance has existed since 

our nation’s infancy. To quote Chief Justice John Marshall:

No questions can be brought before a judicial 

tribunal of greater delicacy than those which involve
UTAH STREAM ACCESS COALITION v. VR ACQUISITIONS

HIMONAS, J., concurring in part and dissenting in part

the constitutionality of a legislative act. If they 

become indispensably necessary to the case, the court 

must meet and decide them; but if the case may be 

determined on other points, a just respect for the 

legislature requires, that the obligation of its laws 

should not be unnecessarily and wantonly assailed.

Ex parte Randolph, 20 F. Cas. 242, 254 (C.C.D. Va. 1833) (Marshall, J., 

concurring). Because I believe the majority opinion forsakes this 

norm, I respectfully dissent, albeit only in part.

¶96 I’m fully on board with the majority’s account of Conatser v. 

Johnson, 2008 UT 48, 194 P.3d 897. We always have the prerogative to 

clarify a prior opinion. But that’s as far down the line as I’m willing 

to go. I part company with my colleagues at their decision to allow

the parties to force us to address compound, complicated 

constitutional matters by contriving to skip over an obvious nonconstitutional predicate issue. This gambit by the parties is noxious 

to our long-held principle of constitutional avoidance.

I

¶97 As a decisional rule we shouldn’t let litigants “force this 

court to decide . . . serious constitutional claim[s] by the simple 

expedient of not fully asserting a predicate . . . issue.” Hosp. & Serv.

Emps. Union, Local 399, 743 F.2d 1417, 1425 (9th Cir. 1984). This rule 

keeps faith with first principles and is consonant with the treatment 

of this topic by other courts.

¶98 Before I turn to a review of these principles and the 

authorities, a brief account of how the topic presents itself here is in 

order. By the appellees own admission, they intentionally left aside 

(while simultaneously attempting to preserve for future, potential 

litigation) an inquiry into whether the Provo River is navigable.8

_____________________________________________________________

8 The majority states that the parties have actively disclaimed 

these potential claims. Supra ¶ 40. This is incorrect. USAC has 

expressly stated its awareness of these issues and their intent to 

pursue them. In USAC’s words:

In this matter, the Coalition seeks to preserve the 

public’s right to use public waters and their beds 

irrespective of whether the waters are navigable under 

state and federal law and the Equal Footing Doctrine. 

In doing so, the Coalition does not concede that the 

(continued . . .)
UTAH STREAM ACCESS COALITION v. VR ACQUISITIONS

HIMONAS, J., concurring in part and dissenting in part

30

Instead, by choosing to frame the litigation in terms of “an easement 

right of a ‘dominant’ estate holder,” see supra ¶ 31, both parties have 

asked the court to blind itself and suppose that VR Acquisitions 

owns the streambed of the Provo River9 and to limit its analysis 

based on that supposition. The majority does just that. And with this 

predicate issue now neatly tucked away, the majority goes on to 

outline the parties’ future briefings before the district court on a 

number of important constitutional issues.

¶99 The glaring problem with this approach is that VR 

Acquisitions may not own the streambed. The parties appear to

accept for purposes of this litigation that the Provo River was at one 

time used for log drives. To this end, in paragraph 8 of the Stipulated 

Statement of Undisputed Material Facts section of its memorandum 

in support of its motion for summary judgment, USAC notes that,

“[t]he Provo River was used during the 1880s and 1890s, to float 

timbers during high waters from the Uinta Mountains to Utah Valley 

and points in between, where they were used for railroad ties, 

railroad trestle timbers, mine shoring timbers, cordwood or saw 

wood.”

¶100 This factual assertion provides a basis in the record from 

which USAC could argue that the Provo River was both useful for 

commerce and had practical usefulness to the public as a public 

highway. See Utah Stream Access Coal. v. Orange St. Dev., 2017 UT 82, 

¶ 19, 416 P.3d 553 (noting the PWAA’s definition of “navigable 

water” as “a water course that is useful for commerce and has a useful 

capacity as a public highway of transportation”) (citation omitted)

 

(continued . . .)

Provo River is non-navigable. Indeed, the Coalition 

believes that the Provo is navigable. Should the 

Coalition not succeed in this matter, it anticipates that 

the Coalition or others will pursue a claim of public 

ownership of the waters and bed of the Provo River 

under the federal Equal Footing Doctrine.

Memorandum in Support of Utah Stream Access Coalition’s Motion 

for Summary Judgment, vii n.1, Sept. 2, 2011.

9 Indeed, VR Acquisitions must own it, under USAC’s assertion of 

a dominant estate easement right, as the corollary servient estate 

holder.
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HIMONAS, J., concurring in part and dissenting in part

31

(internal quotation marks omitted). And, as “the touchstone of 

navigability is commercial utility,” this court has previously held 

that “log drive evidence in the record can adequately establish 

commercial utility.” Id. ¶¶ 29, 31. Furthermore, a regular and 

common commercial use such as log driving may satisfy the

navigability test “even if navigable conditions are not continuous.” 

Id. ¶ 34.

¶101 I express no opinion as to whether the Provo River’s history 

does in fact support a claim of navigability, but the potential for such 

a claim makes any determinations of constitutional questions 

premature and potentially unnecessary. Therefore, before 

proceeding as the majority does, I would either request 

supplemental briefing on this question or, preferably, instruct the 

district court to take it up on remand.10 But, instead, the majority

acquiesces to the parties’ set-up—for purposes of this litigation the 

navigability of the relevant stretch of the Provo River isn’t in 

dispute—and unnecessarily allows the parties to manufacture a case 

in which the court must decide important constitutional issues.11

This is anathema to how courts should go about the business of 

judging.

II

¶102 To be sure, it’s generally true, as the majority states, that we 

treat “the plaintiff as the master of the complaint.” See supra ¶ 41. But 

_____________________________________________________________

10 The majority’s assertion that our focus on the ownership

question would contravene judicial economy by inserting a new 

claim proves too much. Supra ¶ 53. Judicial economy is a worthy 

goal but not at the cost of forfeiting our prerogative over 

constitutional questions. We cannot put the cart before the horse by 

allowing the parties to potentially and unnecessarily create a 

constitutional question so that we may more efficiently and speedily 

resolve their case. The parties’ failure to raise the ownership of the 

streambed at trial should properly be remedied by remand to the 

district court.

11 VR Acquisition’s condition of owning the streambed is 

essential to the majority’s disposition of the case. It’s not just a 

logical antecedent but is in fact a necessary antecedent to a public 

trust based disposition. The majority’s approach unavoidably 

accepts the parties’ stipulations as to constitutional ownership. 
UTAH STREAM ACCESS COALITION v. VR ACQUISITIONS

HIMONAS, J., concurring in part and dissenting in part

32

pithy adages don’t trump constitutional norms.12 It’s vital that this 

court “not be forced to ignore the law just because the parties have 

not raised or pursued obvious arguments,” Kaiserman Assocs., Inc. v. 

Francis Town, 977 P.2d 462, 464 (Utah 1998), particularly when it 

comes to constitutional matters. “It is not the habit of the court to 

decide questions of a constitutional nature unless absolutely 

necessary to a decision of the case.” Ashwander v. Tenn. Valley Auth., 

_____________________________________________________________

12 The majority unsuccessfully tries to raise this adage to the same 

plane as constitutional avoidance. Supra ¶ 45 n.4. They err in doing 

so. First, and tellingly, neither of the cases on which they rely—In re 

Adoption of B.B., 2017 UT 59, 417 P.3d 1, or Combe v. Warren’s Family 

Drive-Inns, Inc., 680 P.2d 733 (Utah 1984), supra ¶ 42—touch upon the 

constitutional avoidance issue. Second, and more importantly, the 

exceptions to the adage are many and extend far beyond 

constitutional avoidance. By way of example, (1) plaintiffs are 

certainly not “master of the complaint” when it comes to failing to 

name necessary parties, joinder, and intervention, see UTAH R. CIV. P. 

19, 21, & 24; (2) courts don’t allow parties to stipulate in their 

pleadings or otherwise as to the interpretation of a statute, see, e.g., 

GeoMetWatch Corp. v. Utah State Univ. Research Found., 2018 UT 50, 

¶31, 428 P.3d 1064 (“[W]e are not bound by the parties’ 

interpretation of a statute.”); (3) parties cannot stipulate around 

mootness, see, e.g., Progressive Direct Ins. Co. v. Stuivenga, 276 P.3d 

867, 875 (Mont. 2012) (“[P]arties to litigation cannot by stipulation 

present a moot question to this Court as the basis of a judicial 

decision.”); (4) parties cannot stipulate away standing or subject 

matter jurisdiction, see, e.g., McDonough v. Moriarty, No. 299407, 2005 

WL 843882, at *2 (Mass. Land Ct. Apr. 12, 2005) (“Standing goes to 

the subject matter jurisdiction of the court and cannot be conferred 

by stipulation . . . .”); (5) parties cannot stipulate to appellate 

jurisdiction, see, e.g., Hogan v. G., C. & S.F. Ry. Co., 411 S.W.2d 815, 

816 (Tex. Civ. App. 1966) (“The appellate jurisdiction of this court 

cannot be created by consent[] [or] stipulation of the parties . . . .”); 

and (6) parties cannot stipulate to advisory opinions, see, e.g., Norman 

Enters. Interior Design, Inc. v. DeKalb Cty., 538 S.E.2d 130, 134 (Ga. Ct. 

App. 2000) (“The parties cannot do indirectly through the use of the 

joint stipulation and contingent settlement agreement what they 

could not do directly, i.e., obtain an advisory opinion from both the 

trial and appellate courts.”).
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HIMONAS, J., concurring in part and dissenting in part

33

297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (citation omitted) 

(internal quotation marks omitted).

¶103 The majority fails to properly respect this decisional norm 

by opting to allow the parties to skip over the predicate legal 

question of who holds title to the river bed. A return to first 

principles demonstrates just how bad an idea this is.

¶104 “The rationales behind the doctrine of avoiding 

constitutional questions except as a last resort are grounded in 

fundamental constitutional principles—the great gravity and

delicacy of judicial review, separation of powers, the paramount 

importance of constitutional adjudication, the case or controversy 

requirement, and principles of federalism.” N.J. Payphone Ass’n, Inc.

v. Town of W. N.Y., 299 F.3d 235, 249 (3d Cir. 2002) (Alito, J., 

concurring in the judgment) (internal quotation marks omitted). 

Adherence to this doctrine prevents us from issuing misguided 

decisions that could have otherwise been avoided through the 

exercise of some judicial restraint. See Muller Optical Co. v. EEOC, 743 

F.2d 380, 386 (6th Cir. 1984) (“The duty to avoid decisions of 

constitutional questions . . . [is] based upon the general policy of 

judicial restraint.”); 13 CHARLES ALAN WRIGHT & ARTHUR R. MILLER,

FEDERAL PRACTICE & PROCEDURE § 3531.3 (3d ed. 2018) (“The concern 

that unnecessary decisions be avoided has its most important 

justification in the prospect that unnecessary decisions may be 

wrong decisions.”). Indeed, such judicial restraint is especially 

important in the realm of constitutional law. See Thomas Healy, The 

Rise in Unnecessary Constitutional Rulings, 83 N.C. L. REV. 848, 848–49 

(2005) (“If there is one doctrine more deeply rooted than any other in 

the process of constitutional adjudication, the Court has often stated, 

it is that we ought not to pass on questions of constitutionality . . .

unless such adjudication is unavoidable.” (alteration in original) 

(citation omitted) (internal quotation marks omitted)).

¶105 In solidarity with this need for judicial restraint, courts have 

declared that parties don’t have the right to force constitutional 

issues on judges by skipping over non-constitutional predicate 

questions. See, e.g., W. E. B. DuBois Clubs of Am. v. Clark, 389 U.S. 309, 

312 (1967) (per curiam) (“[T]he District Court should not be forced to 

decide . . . constitutional questions in a vacuum.”); VNA Hospice of 

Md. v. Dep’t of Health & Mental Hygiene, 961 A.2d 557, 570 (Md. 2008) 

(“Litigants may not force the Court to decide constitutional issues 

unnecessarily by failing to raise a non-constitutional issue which can 

properly dispose of the case.”); Ainsworth v. SAIF Corp., 124 P.3d 616, 

619 (2005) (“[W]hen a potential constitutional violation is involved, 
UTAH STREAM ACCESS COALITION v. VR ACQUISITIONS

HIMONAS, J., concurring in part and dissenting in part

34

the parties’ omission of a dispositive source or argument of ordinary 

law cannot compel a court to a needless constitutional decision.”) 

(alteration in original) (citation omitted) (internal quotation marks 

omitted).13

¶106 It certainly has been the settled practice in this state to avoid 

ruling on constitutional questions when they aren’t needed to 

resolve a case. As we recently held, “[b]efore embarking on a review 

of . . . constitutional principles . . . our long-standing policy of 

avoiding unnecessary constitutional decisions . . . counsel[s] that a 

decision on the continuing vitality of . . . [constitutional provisions] 

. . . be avoided unless it is really necessary.” State v. Rowan, 2017 UT 

88, ¶ 22, 416 P.3d 566 (Himonas, J., concurring) (citation omitted) 

(internal quotation marks omitted) (first alteration in original); see 

also State v. Wood, 648 P.2d 71, 82 (Utah 1982) (“It is a fundamental 

rule that we should avoid addressing . . . constitutional issue[s] 

unless required to do so.”).

¶107 As a countermeasure, the majority cites our decisions in 

Conatser v. Johnson, 2008 UT 48, 194 P.3d 897, and J.J.N.P. Co. v. State, 

655 P.2d 1133 (Utah 1982), in support of the proposition that a 

navigability claim is not a necessary antecedent to an easement-

_____________________________________________________________

13 The majority in attempting to distinguish the facts of these 

cases from the one presented to us here ignores the crucial issue. The 

parties haven’t waived the ownership question; they’ve merely 

ignored it and stipulated as to its outcome in an attempt to force this 

court to decide important constitutional questions in an inapt 

context. And rather than confront this point and the general and 

essential pronouncement of law present throughout the myriad cited 

cases, the majority undertakes a case-by-case factual comparison in 

the hopes of distinguishing our case. Supra ¶¶ 45–54. These 

procedural pyrotechnics avoid the substantive point. The parties’ 

failure to litigate a claim here didn’t leave the issue undecided. They 

assumed the decision as a necessary antecedent. The problem isn’t 

over the minutia of whether streambed ownership is technically a 

new claim or new authority in support of an old claim. No, the issue 

is that the parties litigation strategy necessitates an answer to the 

question of ownership, an answer the parties provided without 

briefing, acknowledgment, or our say so, in an attempt to mandate 

us to reach the constitutional questions surrounding the public trust 

doctrine. This we cannot allow.
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HIMONAS, J., concurring in part and dissenting in part

35

based claim of public access to the Provo River. See supra ¶ 35. The 

majority’s logic has no play here. Neither Conaster nor J.J.N.P. called 

upon us to rule on the constitutionality of a legislative enactment in 

relevant part. In Conatser we accepted that the waters were nonnavigable, and that the streambed could therefore be privately 

owned for purposes of determining the scope of the public’s 

easement in state water, but no question of constitutional law was 

before us. 2008 UT 48, ¶¶ 11–19. So too, in the portion of J.J.N.P. cited 

by the majority, we defined only the public’s right to access public 

waters unrelated to any interest in the underlying land and without 

making a determination of constitutional law. 655 P.2d at 1135–37.

Because making a determination of navigability in both Conatser and 

J.J.N.P. wouldn’t have helped avoid resolving a question of 

constitutional law, we were able to accept that a navigability inquiry 

wasn’t a necessary antecedent.

¶108 This isn’t the case here. The PWAA reads that the public 

may “incidentally touch private property as required for safe 

passage and continued movement.” UTAH CODE § 73-29-202(2)(a). 

Any easement inquiry rests on the unverified assumption that the 

streambed is private property owned by VR Acquisitions. We’re

unsure that this is, in fact, true. And, in this case, we cannot separate 

the question of ownership of the streambed from the statutory 

challenge at issue. We should hold off on weighing in on the 

constitutional questions until we have an answer to this antecedent 

question. USAC has already made clear that it wishes to preserve the 

right to pursue a navigability-based theory of access in the future 

should its easement-based and constitutional claims fail. It therefore 

seems that the parties have asked us to strike down a statute as 

unconstitutional when an alternative right of relief, in harmony with 

our legislature’s statutory intentions, may render the entire exercise 

unnecessary. Again, “[i]t is not the habit of the court[s] to decide 

questions of a constitutional nature unless absolutely necessary to a 

decision of the case,” and it may very easily be avoidable here. 

Ashwander, 297 U.S. at 347 (Brandeis, J., concurring) (citation 

omitted) (internal quotation marks omitted). 

¶109 Additionally, the majority’s attempts to guide the parties’ 

future arguments place, in my view, too heavy a thumb on the scale. 

For example, the majority, while attempting not to settle the merits 

of the case, presents unnecessarily strong guidance on several issues 

of merit. It’s unclear to me as yet why article XX section 1 of the Utah 

Constitution assuredly “does not protect mere ‘interests’ in land.” See 

supra ¶ 63. It very well may. Additionally, I don’t endorse the 

majority’s view, or any view at this time, regarding the degree of 
UTAH STREAM ACCESS COALITION v. VR ACQUISITIONS

HIMONAS, J., concurring in part and dissenting in part

36

state participation required to “acquire” or “accept” public lands or 

waters. I’ve nothing to say on this matter and look forward to a more 

thorough inquiry should this question appear before this court 

again.

III

¶110 In short, if the section of the Provo River at issue is 

“navigable” then the streambed is not private property. “If a body of 

water is navigable—that is, if it is useful for commerce and has 

practical usefulness to the public as a public highway—then the state 

owns the water’s bed.” Conatser v. Johnson, 2008 UT 48, ¶ 9, 194 P.3d 

897 (citation omitted) (internal quotation marks omitted). Any ruling 

defining the scope of a dominant estate to the Provo River bed 

necessarily takes for granted that VR Acquisitions owns the 

streambed, which in turn requires that the waters themselves be

non-navigable. I express no opinion as to whether this last point is 

true or not, but a navigability inquiry logically must be settled before 

a private interest in the streambed can be defined. To do otherwise is 

to allow the parties to force this court to rule on an issue of 

constitutional law that determines the ownership of an estate that

neither party may in fact own.

¶111 There may come a case that forces us to define the 

constitutional scope of the public’s easement and how it attaches to 

privately owned streambeds, but it’s not clear to me that this is that 

case. For this reason, I’m constrained to concur in part and dissent in 

part in the majority’s judgment. The district court must settle the 

issue of navigability before making monumental rulings on the 

PWAA by way of a potentially superfluous public easement theory 

of the case.