Developing a Historical Record: Recreational Easements at Statehood
On February 20, 2019, the Utah Supreme Court remanded USAC’s constitutional challenge of the Public Waters Access Act (HB141) back to the fourth district court to answer a “threshold question” before the case would be decided on the merits. The threshold question outlined by the Court is whether “there is a basis in historical fact–in the understanding of public easements in the late 19th century–for the easement recognized in
Conatser.”
In Conatser, the Utah Supreme Court held that the public’s right to lawfully access and use its public waters in place for any lawful activity, including recreation, allowed the public to reasonably touch the privately-owned beds of public waters in ways incident and necessary to such use. USAC’s sole focus over the last several months has been researching historical archives and case law to find evidence that would establish the Conatser easement was recognized in 1896. This has been a massive undertaking since there is no ‘silver bullet’ that would prove our case; USAC’s historical experts have researched and drafted reports collating the political, legal, cultural, and religious environment at statehood in order to provide an objective picture of the understanding of recreational easements in Utah in 1896.
If USAC is able to show that the Conatser easement was recognized at statehood, the fourth district court may then move to the four remaining issues:
Was the easement a “land of the State” under the Utah Constitution’s Article XX, section 1?
Was the easement acquired and accepted under Article XX, section 1?
Whether or not the Public Waters Access Act (the “PWAA” of 2010, a.k.a. HB141) disposed of the easement for the purposes for which it was acquired as required by Article XX, section 1?
Even if the PWAA did not dispose of the easement, did the PWAA violate Article XX, section 1’s mandate that lands of the State be “held in trust for the people.”
With your support, our experts’ reports were completed and submitted to the court and opposing counsel. On July 17, 2020, Judge Derek Pullan of Utah’s fourth district court issued a ruling and order that detailed the scope of historical evidence that will be permitted in the case, as well as how the case will be proceed if USAC prevails on the threshold question. Following briefing and oral arguments, Judge Pullan declined to “limit the scope of relevant evidence to the law of public easements easements existing in the late 19th century.” In essence, the opposing parties argued that the only historical evidence that should be considered by the court is the law of public easements in and around 1896; no evidence of the societal understanding of its rights before statehood, and nothing after. Judge Pullan’s ruling affords USAC the opportunity to provide all relevant evidence to show that a recreational easement–like the one recognized in Conatser–was recognized at statehood. THIS IS HUGE, as it makes USAC’s months and months of research on early public use of Utah’s public waters worth all the effort!
Additionally, Judge Pullan ruled that the case will proceed in two “phases”:
In phase one, the Court will determine: (1) the threshold question; and (2) if that question is decided in USAC’s favor, the question of whether the Conatser easement was a “land of the State” that was “acquired” and “accepted” for purposes of Article XX, section 1
In phase two, the Court will decide (1) whether the PWAA of 2010 violated Article XX, section 1 by “disposing” of the easement for purposes other than those for which it was acquired, and (2) even if no disposition was made, whether the PWAA violated the requirement that lands of the State be held in trust for the people.
This is the first substantive ruling that we have had on remand. We now know that the relevant factual evidence supporting the state’s recognition of recreational easements in 1896 will not be limited to a small snapshot in time, or just legal opinions, but will include the rich history of early Utahns using and enjoying their collective resource. Our opportunity to argue the threshold question is coming up, but we have a few more on deck before this case will be decided.
Given the recent order by Judge Pullan, our case is on track and headed in the right direction. We need to continue to raise funds, which has become considerably more difficult during the COVID-19 pandemic, and we hope you all are keeping the good vibes coming our way. The USAC Board of Directors has been developing some new fundraising platforms that we are excited to unveil, and, as always, we truly appreciate your continued support. Currently, we are focused on historical evidence to get us past the threshold question, but we have four more to knock down before our job is done.
With your support, we got this!
