Utah Stream Access Coal. v. VR Acquisitions, LLC

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

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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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 common-
law 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

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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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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

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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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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

_____________________________________________________________
1The 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.

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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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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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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 second-
guess 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

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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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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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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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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, ALF-
CIO 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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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 non-
constitutional 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 non-
constitutional 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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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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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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¶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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¶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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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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¶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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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 non-
fishable 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

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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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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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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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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 common-
law 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

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Opinion of the Court

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 common-
law principles in concluding that title to public waters “is in the
public; all are equal owners”).

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Opinion of the Court

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 non-
constitutional 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

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.
9Indeed, 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

(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.

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

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

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,

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

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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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 non-
navigable, 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
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HIMONAS, J., concurring in part and dissenting in part

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.

36