                 This opinion is subject to revision before final
                      publication in the Pacific Reporter

                                 2017 UT 82


                                    IN THE

       SUPREME COURT OF THE STATE OF UTAH

                 UTAH STREAM ACCESS COALITION,
                           Appellee,
                                       v.
                   ORANGE STREET DEVELOPMENT,
                            Appellant,
                                      and
                          STATE OF UTAH,
  by and through its DIVISION OF FORESTRY, FIRE AND STATE LANDS,
                              Appellee.

                           No. 20150439-SC
                       Filed November 22, 2017

                            On Direct Appeal


                Third District Court, Silver Summit
                  The Honorable Keith A. Kelly
                          No. 110500360

                                 Attorneys:
W. Cullen Battle, Craig C. Coburn, Salt Lake City, for appellee Utah
                      Stream Access Coalition
    Michael D. Zimmerman, Troy L. Booher, Erin Bergeson Hull,
Christopher E. Bramhall, Salt Lake City, Anthony W. Schofield, Peter
                  C. Schofield, Lehi, for appellant
 Sean D. Reyes, Att’y Gen., Stanford E. Purser, Deputy Solic. Gen.,
 Norman K. Johnson, Michael S. Johnson, John Robinson Jr., Asst.
 Att’ys Gen., Salt Lake City, for appellee State of Utah Division of
                   Forestry, Fire and State Lands
         UTAH STREAM ACCESS COALITION v. ORANGE STREET
                         Opinion of the Court

 ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
   which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, and JUDGE
                      CHRISTIANSEN joined.
 JUSTICE DURHAM filed an opinion concurring in part and dissenting
                             in part.
Having recused himself, JUSTICE PEARCE does not participate herein;
   COURT OF APPEALS ASSOCIATE PRESIDING JUDGE MICHELE M.
                        CHRISTIANSEN sat.


   ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
    ¶ 1 Our decision in Conatser v. Johnson, 2008 UT 48, 194 P.3d 897,
established a public easement right to incidentally touch the beds of
Utah waterways for recreational or other lawful purposes. The
legislature responded to this decision by enacting the Public Waters
Access Act. UTAH CODE § 73-29-101 et seq. That Act cuts back on the
easement right recognized in Conatser. It provides for public access
rights for recreational use of public water that is “navigable water”
or water “on public property.” Id. § 73-29-201(1). In addition, the
statute also recognizes access rights to public water on private
property “with the private property owner’s permission” and “a
public right to float on public water that has sufficient width, depth,
and flow to allow free passage of the chosen vessel at the time of
floating.” Id. §§ 73-29-201(2) & 73-29-202(1). This latter right includes
the right to “incidentally touch private property as required for safe
passage and continued movement,” the right of “portage” around
certain obstructions in the water, and the right to “fish while
floating.” Id. § 73-29-202(2).
   ¶ 2 This case presents questions concerning the interpretation
and application of the Act. The plaintiff is Utah Stream Access
Coalition (USAC). USAC filed this suit seeking a declaration that a
one-mile stretch of the Weber River is “navigable water” to which
the public has a statutory right of recreational use.
   ¶ 3 The district court ruled in USAC’s favor. It found that the
one-mile stretch of the Weber River was “navigable water.” And it
accordingly held that USAC had a right of access to the waters in
question. We affirm. We hold that the Act invokes a legal term of art
embedded in federal law. And we uphold the district court’s
conclusion that the stretch of the Weber River in question qualifies as
“navigable” under this standard.




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                                     I
   ¶ 4 In 2011, USAC filed this lawsuit against Orange Street and
other property owners along a one-mile stretch of the Weber River.
USAC initially named the Summit County Sherriff, the Utah
Division of Wildlife Resources, and the Division of Parks and
Recreation as additional defendants. But the parties agreed to
substitute the Utah Division of Forestry, Fire, and State Lands (the
State) for these parties. And throughout the litigation, the State took
a mostly neutral stance; it did not take a formal position on the
questions presented.
    ¶ 5 USAC asserted that the disputed section of the Weber River
is navigable water. And it sought declaratory relief confirming its
right to use the river for recreation and an injunction barring
property owners and state officials from interfering with its
members’ recreational use rights.
    ¶ 6 During the litigation, the State raised a concern about the
scope of the issues before the district court—specifically the title
implications of the litigation for property owners along the Weber
River. In response to these and other concerns, USAC explained that
it sought only recreational use rights for its members and not a title
determination. Ultimately, USAC’s trial brief clarified that it rooted
its right of access in the Public Waters Access Act, which in its view
implicated a navigability standard imported from federal law.
    ¶ 7 The district court held a four-day bench trial in February
2015. At trial the court heard extensive testimony on historical
commercial uses of the Weber River. The evidence included
testimony and documentation of log drives on the one-mile segment
of the river at issue in the case. After trial the court issued findings of
fact and conclusions of law. It concluded that the disputed section of
the river was navigable under the “navigability for title” standard
set forth in federal “equal footing” law. The district court accepted
the testimony of USAC’s expert showing regular commercial use of
the Weber River leading up to Utah’s statehood. These commercial
uses included transportation of railroad ties, delivery of mining
timber, and floating of logs to sawmills. The district court
determined, moreover, that the Weber River was essential to this
commerce, as overland transportation of timber was not
economically viable. And it issued an injunction preventing
landowners and state officers from interfering with the recreational
use rights of the public on this stretch of the river.
     ¶ 8 The district court also quieted title to the streambed under
the one-mile stretch of the Weber River, holding that the State held
title in the streambed. But USAC did not assert a quiet title claim—
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         UTAH STREAM ACCESS COALITION v. ORANGE STREET
                        Opinion of the Court

and it even disavowed any interest in pursuing a title determination
during the litigation. And all parties on appeal acknowledge that the
quiet title decision was error.
    ¶ 9 We accordingly reverse the district court on this point—
vacating the decision to quiet title to the streambed. And because we
reverse on the ground that a quiet title claim was not properly
presented to the district court, we do not reach the question whether
USAC would have standing to seek a title determination in these
circumstances.
   ¶ 10 In so doing we do not take a position on who holds title to
the streambed in question, or even on the question whether the State
would be precluded from challenging the navigability determination
here in any future case in which a title dispute may arise. Thus, we
are not holding that Orange Street “still hold[s] title to the land in
name only.” Infra ¶ 45. Nor are we deciding that the navigability
decision we affirm here is based on “a ‘third category of water
courses’” distinct from those discussed herein. Infra ¶ 47. We are
simply holding that it was error to award a remedy (a declaration
and order expressly quieting title in the State) in the absence of a
specific request therefor.
   ¶ 11 If and when there is a title dispute over the streambed in
question, it may well be that the State will be precluded from
challenging the navigability determination in this case. But that will
depend on the application of the law of claim preclusion or collateral
estoppel.1 The parties have not briefed that question here so it would


_____________________________________________________________
   1 The dissent views this as less an additional “remedy” and more
an “inescapable . . . corollary.” Infra ¶ 41. But the analogy to
“Euclidean geometry,” infra ¶ 41, doesn’t quite hold. The right to a
declaration quieting title in the State does not necessarily follow
from our disposition of this case; this is no mere logical corollary—a
simple “deduction” requiring “no additional proof.” Infra ¶ 41.
   A decision on the availability of this remedy may require more
than a mere showing of the logical equivalence of the “navigability”
question at issue here and that necessary for quieting title. A key
question, for example, is whether the State is bound by the
navigability determination made here under the law of issue
preclusion. And because the parties stipulated that they were not
seeking a quiet title determination and the State was at least
arguably not a party to the proceedings, we conclude that it was
error for the court to make a quiet title determination.
                                                           (Continued)
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                          Opinion of the Court

be premature for us to resolve it. And it was likewise premature for
the district court to order a remedy that no party had requested.
                                    II
   ¶ 12 The Public Waters Access Act states 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). And the Act defines
navigable water as “a water course that in its natural state without
the aid of artificial means is useful for commerce and has a useful
capacity as a public highway of transportation.” Id. § 73-29-102(4).
    ¶ 13 Orange Street challenges the district court’s application of
these provisions on two grounds. First it challenges the legal
standard employed by the district court. It notes that the statute
includes its own definition of “navigable water” and claims that the
statutory definition differs from the (federal) standard applied by the
district court. Second, Orange Street challenges the district court’s
application of the navigability standard to the facts of this case. It
contends that the district court erred in its determination of the
navigability of the Weber River even assuming the correctness of the
legal standard applied below.
   ¶ 14 Orange Street concedes that it failed to preserve its
challenge to the legal standard applied by the district court. With
that in mind, Orange Street’s first argument is rightly framed in
“plain error” terms. See State v. Powell, 2007 UT 9, ¶ 18, 154 P.3d 788.
Thus, we consider the legal standard applied by the district court
under a plain error standard of review.2 Id. And we find a lack of
plain error.


     In so concluding we are not saying that Orange Street still holds
title, infra ¶ 45, or that the navigability decision we affirm here is
insufficient to establish title, infra ¶ 47. We are simply holding that it
was error to award a remedy in the absence of a specific request
therefor. And we leave the ultimate disposition of this question to
future litigation on the matter.
   2  In so doing we do not necessarily endorse the ongoing viability
of plain error review in civil cases. Nor do we repudiate it. We
simply note that there is an ongoing debate about the propriety of
civil plain error review. Compare Sec. & Exch. Comm’n v. Life Partners
Holdings, Inc., 854 F.3d 765, 783 (5th Cir. 2017) (applying criminal
plain error standard to unpreserved error in civil case), with Moore ex
rel. Estate of Grady v. Tuelja, 546 F.3d 423, 430 (7th Cir. 2008) (limiting
plain error review in civil cases), and Image Tech. Servs., Inc. v.
                                                              (Continued)
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         UTAH STREAM ACCESS COALITION v. ORANGE STREET
                         Opinion of the Court

   ¶ 15 We also affirm the district court’s finding of navigability.
The district court’s findings of fact, of course, are reviewed
deferentially for clear error. See In re Adoption of Baby B., 2012 UT 35,
¶ 40, 308 P.3d 382. The standard of review for the mixed
determination of navigability under the facts of this case is less clear.
Id. ¶¶ 42–44 (noting that the standard of review of mixed
determinations “is sometimes deferential and sometimes not,”
depending on “the nature of the issue and the marginal costs and
benefits of a less deferential, more heavy-handed appellate touch”).
But we think that finding should be given some deference too, given
the fact-intensive nature of the question of navigability. Again,
however, we agree with the district court’s analysis, and find that the
evidence in the record supports the determination that the stretch of
the Weber River in question is navigable under the Act.
                                   A
    ¶ 16 We agree with Orange Street’s threshold point: the question
of “navigability” under the Public Waters Access Act is decidedly a
question of state law. The Act includes a statutory definition of
navigability. See UTAH CODE § 73-29-102(4) (defining “navigable
waters”). And it is that standard that governs the statutory question
of navigability under Utah law.
    ¶ 17 We also agree that the district court looked to the federal
“navigability for title” standard in its analysis. It cited federal cases
in articulating the operative standard of navigability in this case. See
Daniel Ball, 77 U.S. 557, 577 (1870), superseded by statute as stated in
Rapanos v. United States, 547 U.S. 715 (2006); PPL Mont., LLC v.
Montana, 565 U.S. 576, 592 (2012).
    ¶ 18 That said, we think the district court’s reliance on federal
cases was harmless error. We affirm the district court’s legal
standard because we find the statutory standard set forth in the Act
to essentially mirror or incorporate the federal standard.
    ¶ 19 The statute speaks of a “water course” that “is useful for
commerce and has a useful capacity as a public highway of
transportation.” UTAH CODE § 73-29-102(4) (emphases added). The

Eastmak Kodak Co., 125 F.3d 1195, 1206 (9th Cir. 1997) (rejecting the
notion of plain error review of civil jury instructions); see also David
William Navarro, Jury Interrogatories and the Preservation of Error in
Federal Civil Cases: Should the Plain-Error Doctrine Apply?, 30 ST.
MARY’S L.J. 1163, 1170 (1999). And we note that this court has not
had an opportunity to enter this debate, and would be open to doing
so in a case in which the matter is presented for our decision.

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                        Opinion of the Court

federal standard is substantially equivalent. It speaks of waters that
“are used, or . . . susceptible of being used, in their ordinary
condition, as highways for commerce, over which trade and travel are or
may be conducted in the customary modes of trade and travel on
water.” Daniel Ball, 77 U.S. at 577 (emphases added).
   ¶ 20 The parallelism in terminology is striking. Both the state and
federal standards define a concept of “navigability.” The key
operative terms of both standards, moreover, are identical. Both
speak of waters used as “highways.” And both refer to those
“highways” being used for conducting “commerce.”
    ¶ 21 The legislature’s adoption of longstanding federal
terminology is decisive. A “cardinal rule of statutory construction”
says that a legislature’s use of an established legal term of art
incorporates “the cluster of ideas that were attached to each
borrowed word in the body of learning from which it was taken.”
FAA v. Cooper, 566 U.S. 284, 292 (2012) (citation omitted).3 And that
rule is properly invoked here. The striking parallelism between the
statutory definition and the federal standard is an indication that our
legislature was adopting the “cluster of ideas” in federal law. We
interpret the Public Waters Access Act to incorporate the federal
standard of navigability.
     ¶ 22 Orange Street identifies a purported difference in the
terminology of the state and federal standards. It notes that the Utah
statute speaks in the present tense—of a water course that “is useful
for commerce and has a useful capacity as a public highway of
transportation.” UTAH CODE § 73-29-102(4) (emphases added). And it
claims that the Utah standard is accordingly distinct from the federal
standard in at least this respect—in that the federal “navigability for
title” standard is backward-looking, assessing use of waters as a
“highway” for “commerce” as of the date of statehood (the relevant
date under the equal footing doctrine). PPL Mont., 565 U.S. at 592.
   ¶ 23 But this is a distinction without a difference. The statute
uses the same verb tense as the federal cases. The Daniel Ball case, as
quoted above, uses present tense verbs. It speaks of waterways that
_____________________________________________________________
   3 See also Maxfield v. Herbert, 2012 UT 44, ¶ 31, 284 P.3d 647
(“When the legislature ‘borrows terms of art in which are
accumulated the legal tradition and meaning of centuries of practice,
it presumably knows and adopts the cluster of ideas that were
attached to each borrowed word in the body of learning from which
it was taken.’” (quoting Morissette v. United States, 342 U.S. 246, 263
(1952))).

                                  7
         UTAH STREAM ACCESS COALITION v. ORANGE STREET
                         Opinion of the Court

“are used”—or even are “susceptible of being used”—as “highways
for commerce.” Daniel Ball, 77 U.S. at 563 (emphasis added). And it
likewise frames the analysis of the use of such “highways” for “trade
and travel” in the present tense—speaking of highways “over which
trade and travel are or may be conducted in the customary modes of
trade and travel on water.” Id. (emphasis added). In context,
however, the timeframe of the inquiry into use of waterways as
highways for commerce is understood as backward-looking. See PPL
Mont., 565 U.S. at 592. And the present verb tense of the Daniel Ball
formulation has always been understood, with that gloss, as
backward-looking.
     ¶ 24 The verb-tense problem in this field stems from a distinction
between the “navigability” question presented in Daniel Ball and that
at issue in cases involving “navigability for title.” Daniel Ball
concerned the scope of Congress’s power over “commerce,” which
has long been understood to extend to the regulation of “‘all
navigable waters of the United States.’” 77 U.S. at 564 (quoting
Gilman v. Philadelphia, 70 U.S. 713, 724–25 (1865)). And in that setting
the present tense formulation makes perfect sense—Congress has
power to regulate a waterway if it is navigable. The Daniel Ball test
has been transplanted consistently to cases involving title under the
equal footing doctrine.4 In the navigability-for-title cases the quote
from Daniel Ball is preserved, with the present verb tense included.
See, e.g., United States v. Utah, 283 U.S. 64, 76 (1931) (quoting Daniel
Ball including its present tense formulation). Yet the courts have long
understood the test to imply a different timeframe in this setting—to
look to the time of statehood.5 And we view the Public Waters
Access Act to follow this same pattern: the legislature was importing
the terminology of the Daniel Ball test (including its present verb
tense), but doing so in a manner that conveyed the navigability-for-
title timeframe.

_____________________________________________________________
   4 E.g., PPL Mont., 565 U.S. at 591–92; United States v. Utah, 283 U.S.
64, 75–76 (1931); Oklahoma v. Texas, 258 U.S. 574, 586 & n.7 (1922).
   5  PPL Mont., 565 U.S. at 592 (“For state title under the equal-
footing doctrine, navigability is determined at the time of
statehood . . . .”); Utah, 283 U.S. at 75 (“In accordance with the
constitutional principle of the equality of states, the title to beds of
rivers within Utah passed to that state when it was admitted to the
Union, if the rivers were then navigable; and, if they were not then
navigable, the title to the river beds remained in the United States.”
(citations omitted)).

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                          Opinion of the Court

   ¶ 25 The standard in the Public Waters Access Act is parallel to
that set forth in the federal cases. It invokes the terminology of the
federal case law. And because the federal standard is viewed as
backward-looking despite its present-tense formulation, we view the
Utah Act to contemplate the same timeframe: the question is
whether a given water course meets the statutory standard of
navigability as of the time of statehood.
    ¶ 26 A contrary conclusion would be hard to square with the
structure of the Act. The statute contemplates two categories of
water courses—those that traverse public property and those that
traverse private property.6 And it allows recreational use of water
courses that traverse public property and cuts off the Conatser v.
Johnson, 2008 UT 48, 194 P.3d 897, right of use of water courses that
traverse private property.7 Orange Street’s approach contemplates a
_____________________________________________________________
   6See UTAH CODE § 73-29-201(1), (3) (identifying water traversing
“public property” and “navigable water” as open to recreation, but
prohibiting recreational use of “public water on private property”).
   7   Compare id. § 73-29-103(2) (“[G]eneral constitutional and
statutory provisions declaring public ownership of water and
recognizing existing rights of use are insufficient to overcome the
specific constitutional protections for private property and do not
justify inviting widespread unauthorized invasion of private
property for recreation purposes where public access has never
existed or has not existed for a sufficient period and under the
conditions required to support recognition under this chapter[.]”),
and id. § 73-29-103(6) (“The Legislature declares . . . its intent to foster
restoration of the accommodation existing between recreational
users and private property owners before the decision in Conatser v.
Johnson, affirm a floating right recognized by the court in J.J.N.P. Co.
v. State, and recognize adverse use as a constitutionally sound and
manageable basis for establishing a limited right of public
recreational access on private property in accordance with this
chapter.”), and id. § 73-29-201(1) (“The public may use a public water
for recreational activity if . . . the public water . . . is on public
property . . . .”), and id. § 73-29-203 (authorizing recreational use
where an easement has been established over the private property
by adverse possession), with id. § 73-29-201(3) (“A person may not
access or use a public water on private property for recreational
purposes if the private property is property to which access is
restricted, unless public recreational access is established [by adverse
possession as defined in the Act].”).

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         UTAH STREAM ACCESS COALITION v. ORANGE STREET
                         Opinion of the Court

new third category of water courses. To accept its view we would
have to interpret the statute to establish public use rights for a subset
of water courses that traverse private property but are open to
recreation without a showing of adverse possession. We find no
room in the language or structure of the statute to support this
approach.
   ¶ 27 For these reasons we conclude that any error in the district
court’s decision to look to federal law was harmless. And because we
find no prejudicial error we cannot reverse on the basis of any plain
error. Powell, 2007 UT 9, ¶ 21 (“The third element of the plain error
analysis requires that the party seeking review show that the error
was harmful.”).
                                   B
   ¶ 28 The district court applied the above-cited standard to the
evidence presented at trial. It credited evidence of regular log drives
to supply the railroad, transportation of mining timbers, and the
delivery of logs to sawmills at the relevant time of statehood. It also
found that this commercial activity could not feasibly have taken
place but for the Weber River, as there were no commercially viable
overland means of transporting the timber from the forest to its
destination. And on these grounds it concluded that this stretch of
the Weber River was “useful [for] commerce” and was “used and
susceptible of being used, in its natural and ordinary condition, as
highway of commerce.”
    ¶ 29 These findings are more than sufficient to sustain the district
court’s determination of navigability. As the text of the statutory
definition indicates, the touchstone of navigability is commercial
utility—whether a waterway is “useful for commerce” or in other
words has “useful capacity as a public highway of transportation.”
UTAH CODE § 73-29-102(4). That touchstone is reinforced in the case
law. In the words of this court:
       To meet the test of navigability as understood in the
       American law a water course should be susceptible of
       use for purposes of commerce or possess a capacity for
       valuable floatage in the transportation to market of the
       products of the country through which it runs. It
       should be of practical usefulness to the public as a
       public highway in its natural state and without the aid
       of artificial means. A theoretical or potential
       navigability, or one that is temporary, precarious, and
       unprofitable, is not sufficient.



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                         Opinion of the Court

Monroe v. State, 175 P.2d 759, 761 (Utah 1946) (quoting Harrison v.
Fite, 148 F. 781, 783–84 (8th Cir. 1906)).
    ¶ 30 The nature of commercial utility may vary from region to
region. “It is obvious that the uses to which the streams may be put
vary from the carriage of ocean liners to the floating out of logs.”
United States v. Appalachian Elec. Power Co., 311 U.S. 377, 405 (1940)
(citation omitted), superseded by statute as stated in Rapanos v. United
States, 547 U.S. 715 (2006). “[T]he density of traffic varies equally
widely from the busy harbors of the seacoast to the sparsely settled
regions of the Western mountains.” Id. at 405–06 (citation omitted).
And “[t]he tests as to navigability must take these variations into
consideration.” Id. at 406.8
    ¶ 31 The evidence credited by the district court is easily sufficient
under this legal framework. The controlling question is commercial
utility—proof that the waterway in question is “generally and
commonly useful to some purpose of trade or agriculture.” United
States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 699 (1899)
(citation omitted). And the log drive evidence in the record can
adequately establish commercial utility. Log drives are a relevant
“purpose of trade or agriculture,” and the evidence in the record
sustained both the general nature and commonality of such use.
_____________________________________________________________
   8  See also Montello, 87 U.S. 430, 441–42 (1874) (“It would be a
narrow rule to hold that in this country, unless a river was capable of
being navigated by steam or sail vessels, it could not be treated as a
public highway. The capability of use by the public for purposes of
transportation and commerce affords the true criterion of the
navigability of a river, rather than the extent and manner of that use.
If it be capable in its natural state of being used for purposes of
commerce, no matter in what mode the commerce may be
conducted, it is navigable in fact, and becomes in law a public river
or highway. Vessels of any kind that can float upon the water,
whether propelled by animal power, by the wind, or by the agency
of steam, are, or may become, the mode by which a vast commerce
can be conducted, and it would be a mischievous rule that would
exclude either in determining the navigability of a river. It is not,
however, as Chief Justice Shaw said, every small creek in which a
fishing skiff or gunning canoe can be made to float at high water
which is deemed navigable, but, in order to give it the character of a
navigable stream, it must be generally and commonly useful to some
purpose of trade or agriculture.” (citation omitted) (internal
quotation marks omitted)).


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         UTAH STREAM ACCESS COALITION v. ORANGE STREET
                         Opinion of the Court

    ¶ 32 This analysis also forecloses Orange Street’s various
attempts to undermine the district court’s determination of
navigability. First, the operative navigability test does not require
proof of both commercial “trade” and passenger “travel.” Daniel Ball,
granted, uses the phrase “trade and travel.” 77 U.S. at 563. It is also
true that the U.S. Supreme Court decisions upholding the
navigability of a waterway have cited evidence of both commercial
use and passenger travel. See, e.g., United States v. Holt State Bank, 270
U.S. 49, 57 (1926) (noting that early settlers used the water course as
a “route[] for trade and travel”). But that does not render such dual
evidence necessary. And we find no such requirement in the
operative legal standard. The essential test, again, is commercial
utility. So long as a given waterway is generally and commonly
useful to a purpose of trade or agriculture it may qualify as
navigable. It matters not, moreover, that the commercial utility is
limited to trade and does not encompass passenger travel.9
    ¶ 33 That conclusion also overtakes Orange Street’s second (and
related) point—that the log drive evidence in the record failed
because it was limited to periods of seasonal runoff, and was not
year-round. As Orange Street indicates, “[t]he mere fact that logs,
poles, and rafts are floated down a stream occasionally and in times
of high water does not make it a navigable river.” Rio Grande Dam,
174 U.S. at 698.10 But the evidence here was not of mere occasional
commercial use. It was of regular, common use of the Weber River
for log drives. And because that evidence demonstrated the
commercial utility of the river it also established its navigability.


_____________________________________________________________
   9  United States v. Oregon, 295 U.S. 1 (1935), relied on by Orange
Street, is not to the contrary. That case involved a series of very
shallow lakes that largely dried up each year and had never been put
to any significant commercial use as a highway of commerce. See id.
at 15–16. And the inability to float any craft upon the water may well
show that a waterway is not useful as a highway of commerce. But
the Oregon case does not support Orange Street’s position. It does
not show that capacity to transport people by boat is an element of
the federal navigability standard.
   10 See also Monroe, 175 P.2d at 761 (rejecting a navigability claim
for a high mountain lake irrespective of its capacity to float a boat
because its commercial utility was illusory and “navigability should
not be governed by our powers of imagination to vision what we
deem sufficient to make it such a public waterway”).


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    ¶ 34 Orange Street cites Oklahoma v. Texas, 258 U.S. 574 (1922), in
support of its assertion that the Weber River is non-navigable
because “[i]ts characteristics are such that its use for transportation
[are] . . . confined to the irregular and short periods of temporary
high water.” Id. at 591. But again that is not the state of the record
here. The evidence showed that the Weber River was used—not
irregularly during rare periods of high water—but regularly and
commonly for commercially viable log drives. And again that is
sufficient. Where the “navigable quality of a water
course . . . continue[s] long enough to be useful and valuable in
transportation; and the fluctuations . . . come regularly with the
seasons, so that the period of navigability may be depended upon,”
the water course will satisfy the navigability test even if navigable
conditions are not continuous. Monroe, 175 P.2d at 761.11 That
standard was satisfied by the evidence in the record here.
    ¶ 35 We affirm on that basis. We conclude that there was
sufficient evidence to support the district court’s determination that
the relevant stretch of the Weber River was commercially useful on a
regular basis, and not merely in an occasional season of high water.
And we deem that evidence sufficient to establish navigability of the
river where it crosses the property at issue in this case.
                                     III
   ¶ 36 For the reasons set forth above, we affirm the district court’s
determination that the disputed segment of the Weber River is
navigable water under the Public Waters Access Act. We also vacate
the district court’s decision quieting title in the State (in light of the
parties’ confession of error on that point).




_____________________________________________________________
   11  See also PPL Mont., 565 U.S. at 602–03 (“While the Montana
court was correct that a river need not be susceptible of navigation at
every point during the year, neither can that susceptibility be so brief
that it is not a commercial reality.”); Appalachian Elec. Power Co., 311
U.S. 377, 409 (1940) (“Nor is it necessary for navigability that the use
should be continuous. The character of the region, its products and
the difficulties or dangers of the navigation influence the regularity
and extent of the use.”); Econ. Light & Power Co. v. United States, 256
U.S. 113, 121–22 (1921) (Navigability does not require that a water
course “be open at all seasons of the year, or at all stages of the
water.”).

                                   13
          UTAH STREAM ACCESS COALITION v. ORANGE STREET
        DURHAM, J., concurring in part and dissenting in part

   JUSTICE DURHAM, concurring in part, dissenting in part:
     ¶ 37 I concur in most of the majority opinion’s analysis, but
disagree with its reversal of the district court’s title determination.
The majority opinion reverses the district court’s holding that
“quieted title to the streambed under the one-mile stretch of the
Weber River, holding that the State held title to the streambed.”
Supra ¶ 8. I understand the majority’s hesitance to quiet title in the
State when the parties stipulated that they were not seeking to quiet
title. However, I believe U.S. Supreme Court precedent mandates
that we recognize the State’s title when a waterway is determined to
be navigable and I dissent from this portion of the opinion. I would
hold that a federal navigability-for-title claim is a quiet title claim. I
first discuss why I believe we must hold that the State has title, then
why I believe USAC has standing to bring such a claim in this case.
                 I. TITLE VESTED IN THE STATE AT
                      THE TIME OF STATEHOOD
      ¶ 38 “Upon statehood, the State gains title within its borders to
the beds of waters then navigable . . . .” PPL Mont., LLC v. Montana,
565 U.S. 576, 591 (2012); see also Oregon ex rel. State Land Bd. v.
Corvallis Sand & Gravel Co., 429 U.S. 363, 370 (1977) (“[U]nder the
equal-footing doctrine new States, upon their admission to the
Union, acquire title to the lands underlying navigable waters within
their boundaries.”). Thus, if a body of water was navigable at the
time of statehood, “[t]he title to the land underlying the . . . [r]iver at
the time [the State] was admitted to the Union vested in the State as
of that date.” Corvallis Sand & Gravel Co., 429 U.S. at 370; see also PPL
Mont., LLC, 565 U.S. at 592 (“For state title under the equal-footing
doctrine, navigability is determined at the time of statehood
. . . .”). This test, determining the navigability at the time of
statehood, is often called the federal navigability-for-title test
because it is used to recognize lands that the State took title to when
it joined the union. See supra ¶ 24; PPL Mont., LLC, 565 U.S. at 594.
    ¶ 39 Under this test, if a waterway was navigable at the time of
statehood, “the State's title to the riverbed vests absolutely as of the time
of its admission and is not subject to later defeasance by operation of
any doctrine of federal common law;” only “state law governs
subsequent dispositions.”12 Corvallis Sand & Gravel Co., 429 U.S. at
_____________________________________________________________
   12 Additionally, as mentioned below, submerged land under
navigable waters are subject to article XX, section 1 of the Utah
Constitution and can only be disposed in accordance with the
section. See infra ¶¶ 51–52.

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                          Cite as: 2017 UT 82
        DURHAM, J., concurring in part and dissenting in part

370–71, 378 (emphasis added). Indeed, the language from United
States Supreme Court precedent makes it clear that the State has
always held title to those lands since the State’s birth, regardless of
whether a court ever has, or ever does, determine that the waterway
is navigable. The State gained title to the land under all navigable
waters in 1896. Thus once a district court recognizes that a stretch of
river was navigable under the navigability-for-title test, it necessarily
recognizes that the State has held title to the land under that section
of water since 1896. See PPL Mont., LLC, 565 U.S. at 591 (“The title
consequences of the equal-footing doctrine can be stated in summary
form: Upon statehood, the State gains title within its borders to the
beds of waters then navigable . . . .”).
    ¶ 40 While the parties, and the plaintiff in particular, generally
frame what issues this court determines, see Osguthorpe v. ASC Utah,
Inc., 2015 UT 89, ¶ 49, 365 P.3d 1201 (stating that judges are typically
“barred from ‘granting [] relief on issues neither raised nor tried’”
(alteration in original) (citation omitted)); Caterpillar Inc. v. Williams,
482 U.S. 386, 398–99 (1987) (stating that “the plaintiff is the master of
the complaint”), parties do not have the power to argue that a
waterway is navigable under the navigability-for-title test without
triggering our recognition that title vested in the State in 1896. When
a party brings a claim that a waterway is navigable under the federal
navigability-for-title test, the nature of the claim itself requires the
court to determine whether the State holds title. This is regardless of
any maneuvering or erroneous legal stipulations by the litigants. See
Adkins v. Uncle Bart’s, Inc., 2000 UT 14, ¶ 40, 1 P.3d 528 (“[A]n
overlooked or an abandoned argument should not compel an
erroneous result. We should not be forced to ignore the law just
because the parties have not raised or pursued obvious arguments.”
(citation omitted)).
    ¶ 41 The majority characterizes the district court’s declaration
and order expressly quieting title in the State as a “remedy.” Supra
¶¶ 10–11. However, the quiet title decision is not a separate remedy,
but an inescapable legal corollary to a court determination that a
waterway was navigable at the time of statehood under the federal
navigability-for-title test. A corollary “requir[es] no additional proof
following upon one just demonstrated.” Corollary, WEBSTER’S NEW
INTERNATIONAL DICTIONARY (2d ed. 1949). It is alternately defined as
“[a] deduction, consequence, or additional inference, more or less
immediate, from a proved proposition” and “[s]omething that
naturally follows; a practical consequence; a result.” Id. For example,




                                    15
          UTAH STREAM ACCESS COALITION v. ORANGE STREET
         DURHAM, J., concurring in part and dissenting in part

a well-known theorem in Euclidean geometry is the Pythagorean
theorem.13 A corollary to this theorem is that if the sides of a triangle
can be written in a mathematically correct equation in accordance
with the Pythagorean theorem, then it is a right triangle. This
statement necessarily follows from proving the Pythagorean
theorem. So, if a triangle has sides measuring 3, 4, and 5, and
32 + 42 = 52 (9 + 16 = 25), it is a right triangle: it is an inescapable result
of the mathematically correct equation. In this case, if a court
determines that the elements of the federal navigability-for-title test
(the lengths of the triangle) are met, qualifying as “navigable” under
the standard (the equation as written from the Pythagorean theorem
is mathematically correct), then the state holds title (the triangle is a
right triangle). It is not a separate “remedy,” but a “result” or
“practical consequence” that “require[es] no additional proof
following upon one just demonstrated.” Id.
    ¶ 42 Litigation of a navigability-for-title claim necessarily leads
to a determination that quiets title. That is because this court does
not grant title to the State; the United States Constitution already
granted title to the State at the time it was admitted into the union.
PPL Mont., LLC, 565 U.S. at 591 (2012) (“[A] State’s title to these lands
[is] ‘conferred not by Congress but by the Constitution itself.’”
(citation omitted)). In a case such as this, we merely determine
whether the waterway was navigable at statehood. At that point, we
necessarily recognize that the State has held title to that land since
1896. See, e.g., Mont. Coal. for Stream Access, Inc. v. Curran, 682 P.2d
163, 166 (Mont. 1984) (“Since the Dearborn [River]
was navigable under the log-floating test at the time of statehood in
1889, title to the riverbed was owned by the federal government
prior to statehood and was transferred to the State of Montana upon
admission to the Union.”). No stipulation by the parties can
overcome the inevitable result that the State holds title to the land.
Even if we remove the portion of the district court’s judgment that
quiets title in the State, the State still holds title whether this court
recognizes it or not.



_____________________________________________________________
   13 The Pythagorean theorem states that the lengths of the sides of
a right triangle are mathematically related. The square of the
hypotenuse (the side that is opposite of the right angle) is equal to
the sum of the other two sides of the right triangle. Often this is
written as the equation a2 + b2 = c2. This proposition has been proven
in multiple ways, hence becoming a working theorem.

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                           Cite as: 2017 UT 82
        DURHAM, J., concurring in part and dissenting in part

     ¶ 43 Even the State acknowledges this outcome. In its brief, the
State “concedes the obvious title implications of the district court’s
navigability finding, and does not intend to ignore those
implications.” Despite this concession, the State argues that it was
inappropriate for the district court to state the obvious and
inescapable outcome of such a claim and hold that the State holds
title to the lands at issue. It asserts that for a court to quiet title, the
State must request as much. This raises some significant and
troubling issues. The State is essentially arguing that it enjoys all the
benefits of owning the land, as the navigability finding so obviously
implies, but that it doesn’t want to actually hold title to the land until
it decides to bring a quiet title action.
    ¶ 44 I would hold that the State cannot have its cake and eat it
too. First, the State cannot, over one-hundred and twenty years after
it acquired title under the United States Constitution, decide it does
not want title, or does not want its title to be recognized at this time.
“[T]he State's title to the riverbed vests absolutely as of the time of its
admission and is not subject to later defeasance . . . .” Corvallis Sand
& Gravel Co., 429 U.S. at 370–71. Additionally, the State has already
accepted title to the lands under navigable waterways when it
adopted the Utah Constitution. See UTAH CONST. art. XX, § 1 (“All
lands of the State . . . that may otherwise be acquired, are hereby
accepted.”); see also State v. Rolio, 262 P. 987, 992–93 (Utah 1927)
(stating that under article XX, section 1 the “beds of navigable waters
are included as ‘public lands of the state,’ as ‘otherwise acquired’”
(citation omitted)).
    ¶ 45 Second, the majority’s awkward determination puts
landowners in untenable positions. Under the majority’s opinion,
Orange Street does not enjoy the rights accorded to private property
owners under the Public Waters Access Act. Without title to the State
being acknowledged and formally declared, Orange Street would for
some purposes still hold title to the land in name only, but not in
fact. Orange Street may very well be liable to pay property taxes on
that land. This removes at least one incentive for the State to bring a
quiet title action. If the State, and its subdivisions, can continue to
receive property taxes on the land yet enjoy many of the benefits of
public ownership, it may decide to never bring a quiet title action.
Then we could have the odd case where the landowner sues the
State to force the State to take title to the land.
    ¶ 46 Additionally, the majority’s analysis recognizes that a
navigability-for-title claim is a quiet title claim. The majority opinion
includes excellent and detailed analysis on why the Public Waters



                                    17
         UTAH STREAM ACCESS COALITION v. ORANGE STREET
        DURHAM, J., concurring in part and dissenting in part

Access Act incorporates the federal navigability-for-title test in its
definition of navigability. It concludes its analysis by stating that
       The [Public Water Access Act] contemplates two
       categories of water courses—those that traverse public
       property and those that traverse private property. . . .
       Orange Street’s [interpretation of the Act] contemplates
       a new third category of water courses. To accept its
       view we would have to interpret the statute to
       establish public use rights for a subset of water courses
       that traverse private property but are open to
       recreation without a showing of adverse possession.
       We find no room in the language or structure of the
       statute to support this approach.
Supra ¶ 26 (footnotes omitted). I agree wholeheartedly with this
statement. When we interpret the Public Waters Access Act to
incorporate the federal navigability-for-title test, we are essentially
saying that there are only two categories of land over which natural
water runs: public land and private land. The public, under the Act,
has the right to use the public land under public water, but can only
use the private land under public water if the use is incidental to the
public’s floating rights or the public proves some sort of public
easement or adverse possession under Utah Code section 73-29-203.
    ¶ 47 The majority’s opinion rejects Orange Street’s attempt to
create a third category of water courses, holding that it does not
comport with the “language or structure of the statute.” Supra ¶ 26.
The majority recognizes that “[t]he statute contemplates two
categories of water courses—those that traverse public property and
those that traverse private property.” Supra ¶ 26. But then, just
paragraphs after denouncing such an approach, the majority goes on
to create a “third category of water courses”: those that are
navigable, but not public property. Supra ¶ 26. Without quieting title
to the land in the State, the majority still holds that the public has
almost unrestricted rights to use that land, but that the State does not
have title. This discrepancy will create confusion as to how such a
case should be litigated. According to the majority, the public only
has use rights on public land. Thus, its opinion essentially forces
private parties to prove that the State holds title to the lands
underneath navigable waterways. Yet, the majority then goes on to
say that the district court erred by quieting title in the State.
     ¶ 48 I agree with the State that we cannot “ignore” the “obvious
title implications” that arise when we hold that a body of water is
navigable under the federal navigability-for-title test. Because a
claim that a river is navigable under the federal navigability-for-title

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                           Cite as: 2017 UT 82
        DURHAM, J., concurring in part and dissenting in part

test is necessarily a claim to quiet title, I would address whether
private parties have standing to bring such a claim.
                II. PRIVATE PARTIES HAVE STANDING
    ¶ 49 The majority avoids the question of whether a private party
has standing to bring a claim that the State has title to the lands
underlying navigable waters. Supra ¶ 9. Because I see a claim for
navigability-for-title as being identical to a claim for quiet title, I
would reach that issue and hold that Utah citizens, in some
circumstances, do have standing.
    ¶ 50 Traditional standing exists when a person has suffered a
“distinct and palpable injury” that gives it a “personal stake” in the
outcome of litigation. Utah Chapter of Sierra Club v. Utah Air Quality
Bd., 2006 UT 74, ¶ 19, 148 P.3d 960 (citation omitted). To establish
such an injury, the party must show 1) that “it has been or will be
‘adversely affected by the [challenged] actions,” 2) “a causal
relationship ‘between the injury to the party, the [challenged] actions
and the relief requested,’” and 3) that “the relief requested must be
‘substantially likely to redress the injury claimed.’” Id. (alterations in
original) (citations omitted). In the context of a claim that seeks to
quiet title to land, the party asserting the claim must establish that it
“could acquire an interest in the property created by the court’s
judgment or decree.” Holladay Towne Ctr., L.L.C. v. Brown Family
Holdings, L.L.C., 2011 UT 9, ¶ 54, 248 P.3d 452 (citation omitted).
Standing does not exist only for those parties “who [can] acquire
[complete] title,” but for those parties that could acquire any interest
in the land. Id. Under United States Supreme Court precedent and
our constitution, the people of this State hold an interest in the lands
held by the State under the public trust doctrine, including land
under navigable waters.
    ¶ 51 When Utah was admitted into the union, the title to the
lands underlying navigable waters passed to the State. See Mont.
Coal. for Stream Access, Inc. v. Curran, 682 P.2d 163, 166 (Mont. 1984)
(“[T]itle to the riverbed [of navigable rivers] was owned by the
federal government prior to statehood and was transferred to the
State . . . upon admission to the Union.”). However, the State is not
the only party to hold an interest in the land. According to article XX,
section 1 of the Utah Constitution, the State accepted those lands
from the federal government to be “held in trust for the people.” See
also Ill. Cent. R.R. Co. v. Illinois, 146 U.S. 387, 452 (1892) (stating that
“the state holds the title to the lands under the navigable waters,”
but that “it is a title different in character from that which the state
holds in lands intended for sale;” rather, “[i]t is a title held in trust
for the people of the state”).

                                    19
         UTAH STREAM ACCESS COALITION v. ORANGE STREET
        DURHAM, J., concurring in part and dissenting in part

    ¶ 52 Article XX, section 1 thus creates something akin to a
traditional trust relationship, with the State acting as trustee and the
people as beneficiaries. In the traditional trust relationship, the
beneficiaries hold equitable title to (or an equitable interest in) the
trust estate, and the trustee typically holds legal title. In re Estate of
Flake, 2003 UT 17, ¶ 11, 71 P.3d 589 (“The nature of [a trust] is such
that the legal title of the property is held by the trustee, but the
benefit and enjoyment of the property resides with the
beneficiaries.”) superseded by statute on other grounds as recognized in
Dahl v. Dahl, 2015 UT 79, ¶ 32, --- P.3d ---; RESTATEMENT (THIRD) OF
TRUSTS § 2 cmt. d (AM. LAW INST., 2003) (“Although trust
beneficiaries have equitable title, a trustee's title to trust property
may be either legal or equitable. Although it is usually true . . . that
the trustee has legal title, in some instances the trustee will hold only
an equitable title.”). Thus, the people of Utah, including the
members of USAC, could obtain an interest in the lands at issue in
this case if we hold that the waters are navigable.
    ¶ 53 While this may be the case, I would not hold that every
citizen has standing to sue to establish navigability. A single citizen’s
interest in public land is minimal without a showing of a more
concrete injury. Cf. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 333
(2006) (stating that the ordinary taxpayer lacks standing to sue over
government expenditures because the taxpayer’s “interest in the
moneys of the Treasury . . . is shared with millions of others [and] is
comparatively minute and indeterminable” (first alteration in
original) (citation omitted)). I would require citizens to show a
particularized injury in addition to their interest in the land. I believe
that USAC has done so in this case.
    ¶ 54 Here, the members of USAC are citizens of Utah. Thus, once
USAC establishes that the one-mile section of the Weber River is
navigable, its members gain an equitable property interest in the
lands underneath those waters. Additionally, its members were
injured by the defendants’ actions in restricting access to those
waters. USAC’s members frequently fished and waded through the
stretch of the river at issue here. Once the Public Waters Access Act
was passed, Orange Street and other defendants posted no
trespassing signs, cutting off USAC’s members’ rights to wade in the
river. A decree that the State owns the beds of those waters, and
thereby holds them in trust for the people, would grant access to
USAC and its members, thereby remedying their particularized
harm. See UTAH CODE § 73-29-201 (granting access rights on waters
that cross “public property” or that are “navigable water”). For this
reason, I would hold that USAC has standing to quiet title in the
State.

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                          Cite as: 2017 UT 82
        DURHAM, J., concurring in part and dissenting in part

     ¶ 55 I understand the majority’s hesitance in reaching this issue. I
would also hesitate to grant an unrestricted right to private parties to
litigate a claim that forces the State to take title, but I think fears in
that regard are unfounded because the State would almost certainly
be a necessary and indispensable party in any such claim. See UTAH
R. CIV. P. 19. I do not see any issue in this case as the State was a
party. The fact that it chose to remain neutral does not alter that it
was a named party. So long as it was added as a party and had
notice of the proceeding, it had every right and opportunity to argue
in any manner that it saw fit. If a party fails to argue for a position it
wishes to take, or fails to adequately argue for that position, the
position is waived. State v. Johnson, 2017 UT 70, ¶ 14, --- P.3d --- (“If
the parties fail to raise an issue in either the trial or appellate court,
they risk losing the opportunity to have the court address that
issue.” (footnote omitted)). The State, in this case, exercised its rights
by arguing that the court should adopt the federal navigability-for-
title test, but that it should not determine title. This position is
untenable, as discussed above.
   ¶ 56 I would hold that USAC has standing to bring a claim to
quiet title to the lands at issue in this case in the State and the people
of Utah. Accordingly, I would affirm the district court and hold that
the State gained title to the land in 1896.




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