March 8, 2013
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.
Applying the above principles to the PWAA, the court ruled:
a. The Act regulates recreational use of the public’s easement on state waters, an interest protected under Article XX, Section 1.
b. The State retains control over the public’s easement on state waters under Article XX, Section 1.
c. The Act constitutes a disposition of the public’s easement on state waters under Article XX, Section 1.
d. The public’s easement on state waters was acquired for the purpose of promoting public access to and use of those waters. The Act is not rationally related to these purposes. The Act did not represent a policy favoring a higher beneficial use of public waters over another use, or promote one recreational use of the water at the expense of another.
e. Only one remaining question must be answered to determine the constitutionality of the Act under Article XX, Section 1: Does the Act substantially impair the public’s interest in the lands and waters remaining, whether in the Provo River itself or in public water statewide? This is an issue of disputed material fact.
