What recreational activities does the public easement in state waters allow? Conatser v. Johnson Explained

The Utah Supreme Court in Conatser v. Johnson significantly clarified the scope of public easement rights in state waters, rejecting a narrow interpretation that would have limited public recreation to activities performed “upon” the water.

Background and Facts

The Conatsers rafted down the Weber River, crossing private property owned by the Johnsons. During their trip, they touched the riverbed in four ways: their raft touched shallow areas, paddles touched the bottom, fishing tackle contacted the bed, and Kevin Conatser intentionally got out to walk and fish. The Johnsons ordered them off the river and had them cited for criminal trespass. The Conatsers sought a declaration of their rights to use the river and touch its bed.

Key Legal Issues

The central question was the scope of the public’s easement in state waters. Specifically, whether the easement allows only activities performed “upon” the water (primarily floating) or extends to all recreational activities that “utilize” the water. A related issue concerned incidental touching rights—whether the public may touch privately owned riverbeds only when incidental to floating or incidental to all recreational rights.

Court’s Analysis and Holding

The Supreme Court rejected the district court’s reliance on Wyoming’s restrictive Day v. Armstrong precedent. Instead, the court reaffirmed Utah’s broader approach from J.J.N.P. Co. v. State, which grants the public “the right to float leisure craft, hunt, fish, and participate in any lawful activity when utilizing that water.” The court held that touching privately owned beds is permitted when incidental to all recreational rights provided in the easement, not just floating, provided such touching is reasonable and causes no unnecessary injury to landowners.

Practice Implications

This decision establishes Utah’s commitment to broad public access to state waters for recreation. Practitioners representing private landowners should focus on the reasonableness limitations and unnecessary injury standards when challenging public use. Those representing public interests can rely on the “utilize” standard to support various recreational activities beyond mere floating, including swimming, wading, and fishing activities that require riverbed contact.