Oral Arguments scheduled for USAC’s appeal of the Fourth District Court’s Ruling and Order in USAC v. VR Acquisitions, LLC.

USAC Files its Opening Brief in its appeal of the Fourth District Court’s Ruling and Order in USAC v. VR Acquisitions, LLC.

USAC Files Notice of Appeal of the Fourth District Court’s Ruling and Order in USAC v. VR Acquisitions, LLC, that granted defendants VR Acquisitions, LLC’s and the State of Utah’s Motions for Summary Judgment and summarily dismissed the case.

Ruling and Order issued from Judge Pullan of the Fourth District Court granting defendants VR Acquisitions, LLC’s and the State of Utah’s Motions for Summary Judgment, and summarily dismissed the litigation

The Ruling and Order notes that “at oral argument the Coalition argued that the public easement to touch the privately owned beds of Utah’s non-navigable rivers and streams arises out of the public’s ownership of state waters.  In the Coalition’s view, this legal ownership has always existed and it is the source from which the Conatser easement springs.  In fact, the Utah Supreme Court has held that the public right to use state waters was “recognized and confirmed” in Article XVII, Section 1 of the Utah Constitution.  (Citing Adams v. Portage Irrigation, Utah 1937.)  The Court responds:  “The Coalition’s recitation of these legal principles is accurate.  But the Coalition has failed to show how public ownership of state waters and the rights of use derived from that ownership constituted an easement under our law as it existed in the late 19^th century.  This failure to prove the existence of an easement upends the Coalition’s “public ownership” theory – for, in the absence of an interest in “land,” or “lands of the State” Article XX, Section 1 of the Utah Constitution simply has no application.”  The Court concludes with its Order, stating:  “The Coalition has come forward with substantial evidence that in the last half of the 19^th century, Utahans widely and freely touched and used both public and private beds of Utah’s lakes, rivers, and streams fore a variety of purposes, including recreation.  But, the Coalition has failed to prove that this historical use gave rise to a public easement dictated by our law in the late 19^th Century.”

Judge Pullan issues a Ruling and Order re the Scope of the Utah Supreme Court Mandate restating the threshold question identified by the Utah Supreme Court at the time this matter was remanded.  Specifically, the threshold question is whether “there is a basis in historical fact – in the understanding of public easements in the late 19^th century – for the easement [the Utah Supreme Court] recognized in Conatser.”  The Court then orders the proceedings to be conducted 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 the purposes of article XX, section 1.  If the issues in phase one are decided in USAC’s favor, we will move to phase two.  In phase two, the Court will decide (1) whether the PWAA 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.”

Utah Supreme Court issues Ruling that Reverses and Remands on the question of whether the Conatser easement (i.e., the rights of the public to touch privately owned streambeds in ways incidental to use of the publicly-owned waters in that streambed) was in place when the Utah Constitution was adopted in 1895 and thus rooted that right in the Constitution instructing the Fourth District Court to first address the “threshold question” of whether “there is a basis in historical fact – in the understanding of public easements in the late 19^th century – for the easement [the Utah Supreme Court] recognized in Conatser.”

Judge Pullan issues Order re the schedules for Discovery and Dispositive Motions in the remand of the Constitutional Rights (Provo River) case

Utah Supreme Court affirms Third District Court Judge Kelly’s 2015 ruling that the Weber River was used for commerce prior to statehood, and that the evidence of this use was “sufficient to establish navigability of the river where it crosses the property at issue in this case.”  In so doing, the USC affirmed that the river’s beds and banks “where it crosses the property at issue in this case” should be open to lawful public use.

Second Supplemental Briefing Order issued by the Supreme Court of Utah in view of the Navigability Ruling on the Upper Weber River asking whether or not navigability of the Upper Provo should be determined before efforts to determine the constitutionality of the Public Water Access Act are undertaken.

Additional (second) Round of Supplemental Briefs filed with the Utah Supreme Court.

Initial Oral Arguments before the Utah Supreme Court for both the Constitutional Rights (Provo River) and Navigability (Weber River) cases

(First Round of) Supplemental Briefs filed

Oral Arguments before the Utah Supreme Court on the First Request for Supplemental Briefing in the Constitutional Rights (Provo River) case

Motion to Stay Final Judgment filed by counsel for VR Acquisitions, LLC.

Order from the Utah Supreme Court granting VR Acquisition’s Motion to Stay enforcement of the final judgment of the district court pending disposition of the appeal.

Judge Pullan issues final Ruling, Order and (initial) Final Judgment on the Constitutional Rights (Provo River) case in favor of USAC.  The Order and Judgement states:  “The Public Water Access Act violates article XX, section 1 of the Utah Constitution.”  It then proceeds to identify which provisions of the act are unconstitutional.  It concludes:  “Judgment is granted in favor of the Coalition, and against VRA and the State of Utah.”  Adding that “VRA is enjoined from taking any action which prohibits, prevents, impedes, limits, or impairs in any way the public’s right to access the stretch of the Upper Provo River flowing through VRA’s property.”

Counsel for VR Acquisitions, LLC files their initial Notice of Appeal with the Fourth District Court of Utah

Final Judgment issued by Judge Pullan in the Fourth District Court of Utah

Counsel for VR Acquisitions files its Amended Notice of Appeal with the Fourth District Court of Utah

Utah's Fourth District Court issues a third partial ruling (Memorandum Decision 4) in support of USAC’s positions in its Constitutional Rights (Provo River) lawsuit, ruling, in significant part:

1. Whether the Coalition can meet its burden to show that the PWAA – on its face or as applied – substantially impaired the public’s interest in the lands and waters remaining is an issue of fact which must be resolved at trial.

2. The ruling of another Court determining that a one-mile stretch of the Weber River was navigable was relevant to this action, but not necessarily outcome determinative.

3. The Utah Supreme Court did not repudiate legal tests which require intensive fact-finding in Edridge v. Johndrow (2015)

Trial in Provo Courthouse of the Fourth District Court for the Constitutional Rights (Provo River) case.  The question presented at trial:  Did the PWAA violate Article XX, Section 1 of the Utah Constitution?  “To answer this question, the Court must determine whether the Act substantially impaired the public’s interest in the lands and waters remaining – a factual dispute that required a trial.”

Judge Keith Kelly issues final Ruling and Order of the Third District Court on the Navigability of the Weber River finding the Weber to be navigable based upon the substantial evidence of navigability presented at trial by USAC’s experts

Utah's Fourth District Court issues a third partial ruling (Memorandum Decision 3) in support of USAC’s positions in its Constitutional Rights (Provo River) lawsuit, ruling, in significant part:

1. Whether the PWAA substantially impairs the public’s interest in the lands and waters remaining is a disputed material fact to be resolved at trial.

2. The public trust resource at issue is the waters of the state of Utah generally, whether on public or private land, not the regulated easement.

3. Public trust must focus on what remains of the trust resource after the challenged disposition.

4. Existing impediments to full use of and access to the public trust resource (i.e., federal and state regulations) are relevant in determining whether a particular regulation impairs the public’s interest in the lands and waters remaining.

USAC holds rally on the steps of the Utah State Capital in support of HB37

HB37 fails to make it out of Rules Committee – but so does an updated version of Rep. McKiff’s HB68/2013 (i.e., HB233/2014) – in what can be seen as a “stalemate” for legislative action prior to the ruling of the Fourth District Court on USAC’s constitutional challenge of the PWAA in the matter of USAC v. VR Acquisitions.

USAC effectively defeats HB68 by convincing key legislators to keep the bill in the House Rules Committee, and not make it to Committee or the Floor of the House.

Utah’s Fourth District Court issues a second partial ruling (Memorandum Decision 2) in support of USAC’s positions in its Constitutional Rights (Provo River) lawsuit and calls for a trial to determine what the public lost when the “Public Waters Access Act” of 2010 was enacted.  The Memorandum Decision 2 ruling, in significant part:

1. USAC meets the requirements for traditional standing and alternative standing.

2. The public trust is established in Article XX, Section 1 of the Utah Constitution.

3. The public trust under Article XX, Section 1 protects not only the traditional triad of public trust rights – navigation, commerce, and fishing – but also the ecological integrity of public lands and public recreational resources.

4. Article XX, Section 1 does not prohibit the disposition of public lands, but does impose two prerequisites:  (1) the State must dispose of public lands consistent with State law; (2) the State can dispose of public lands only “for the respective purposes for which they have been or may be … otherwise acquired.

5. State action limiting use of public lands may constitute a disposition under Article XX, Section 1, even though the State retains title to the regulated lands.

6. Any disposition of public land under Article XX, Section 1 must be rationally related to the purpose for which the land was granted, donated, devised or otherwise acquired.

7. The party challenging a statute under Article XX, Section 1 has the burden of proof.

January 22, USAC counsel presents the second round of Oral Arguments in the Constitutional Rights (Provo River) case. On January 31, USAC counsel files its Expert Report providing evidence of commercial use of the Weber River in support of its Navigability lawsuit in the Third District Court of Utah.

Utah's Fourth District Court issues a first partial ruling (Memorandum Decision 1) in support of USAC’s positions in its Constitutional Rights (Provo River) lawsuit, ruling, in significant part:

1. The PWAA violates Article V, Section 1 of the Utah Constitution for exercising powers of the judiciary in interpreting the Constitution and declaring the PWAA constitutional.

2. Public ownership of state waters was recognized and confirmed in Article XVII, Section 1 of the Utah Constitution.

3. Waters flowing in rivers, streams, and natural water courses are and always have been owned by the public, and as such are public waters.

4. The public has an easement to use public waters that includes the right to engage in all recreational activities that use the waters.

5. The public easement recognized by the USC in JJNP & Conatser is a corollary right of use derived from public ownership of State waters and was therefore recognized and confirmed  in Article XVII, Section 1 of the Utah Constitution.

6. The PWAA does not violate Article XVII, Section 1 of the Utah Constitution, but regulates use of the public’s easement.

7. The Legislature, as the branch of government responsible for policy-making, is in the best position to weight competing interests in Utah’s natural waters, and to regulate the scope of public use.

8. The Legislature’s authority to regulate use of the public’s easement in Utah waters is limited by Article XX, Section 1 of the Utah Constitution.

9. The public’s easement on state waters constitutes an interest in land under Article XX, Section 1.

USAC counsel presents first round of Oral Arguments in the Public Waters (Provo River) case.