St UT v. USA, et al

Filing 842

MEMORANDUM DECISION and Order-See Order for details. Signed by Judge Dale A. Kimball on 9/15/14. (jmr)

______________________________________________________________________________
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

STATE OF UTAH, by and through it
DIVISION OF FORESTRY, FIRE AND
STATE LANDS,
MEMORANDUM DECISION AND
ORDER

Plaintiff,

Case No. 2:97CV927DAK

vs.
UNITED STATES OF AMERICA;
DEPARTMENT OF THE INTERIOR;
BUREAU OF RECLAMATION; ELUID
MARTINEZ, in his official capacity as
Commissioner; BUREAU OF LAND
MANAGEMENT; SALLY WISELY, in
her capacity as Utah State Director, BLM;
RICHARD W. DAVIS; JOHN DOE and
MARY DOE; et al.,

Judge Dale A. Kimball

Defendants.

This matter is before the court on the Phase 2 process of projecting the Phase 1 lake-wide
boundary elevation onto each remaining parcel in dispute. The parties have fully briefed the
issue. On June 18, 2014, the court held a hearing on the Phase 2 process. At the hearing, the
State of Utah was represented by Michael S. Johnson and the Landowner Defendants were
represented by Robert C. Fillerup.

The court took the matter under advisement. After carefully

considering the law and facts relevant to the issue, the court issues the following Memorandum
Decision and Order.

BACKGROUND
After making several legal rulings in this matter, United States District Court Judge Dale
A. Kimball referred the case to Special Master Michael Goldsmith pursuant to Rule 53(a)(1)(B)
of the Federal Rules of Civil Procedure. The court’s Order of Reference tasked the Special
Master with taking evidence relevant to the boundary of each parcel of property in which the
boundary is still in dispute, making findings as to the historic usage, title, and possession of each
parcel, and issuing a report recommending the proper boundary for each of the parcels.
The Special Master laid out a two-phase procedure for addressing the issues in this case:
Phase 1 involved the determination of a lake-wide boundary elevation based on evidence
submitted by the parties; and Phase 2 involved projecting that lake-wide boundary onto each
remaining parcel in dispute. On March 15, 2013, this court set the lake-wide boundary at the
lower of (1) .2 feet below Compromise Elevation of 4488.95 or (2) the Meander Line. This court
stated that the boundary shall be applied to all parcels that have not already agreed to a boundary
through settlement. Therefore, Phase 2 remains to be determined. Phase 2 involves projecting
the lake-wide boundary elevation onto the remaining parcels in dispute in order to establish the
boundary on each parcel.
DISCUSSION
In projecting the lake-wide boundary elevation onto each of the remaining parcels in
dispute, the parties disagree as to whether the boundary is projected on the present-day location
or where that boundary elevation would have been located in 1896. The Landowner Defendants
claim that there have been substantial and dynamic shifts in the bed of Utah Lake over the last
120 years and presenting evidence of where the boundary would have been located at statehood
2

is an insurmountable obstacle. The State, however, argues that the mere assertion that the
boundary contour on a particular parcel may have changed with the passage of time does not
require the parties or the court to account for each potential change.
When courts are presented with evidence that a shoreline boundary has undergone
changes, the court must analyze the mechanism for that change and the legal effect of that
change. However, unless there is evidence of a known change in the shoreline of a particular
parcel, no analysis of the mechanism of any potential change is necessary.
When a shoreline boundary changes through the slow, natural processes of accretion and
erosion, the law recognizes that the boundary moves to follow such changes. Baxter v .Utah
Dept. Of Transp., 783 P.2d 1045, 1054 (Utah Ct. App. 1989). But when the movement of a
shoreline boundary occurs through rapid avulsion, the legal boundary remains fixed and does not
follow the changed shoreline. Id.
Absent proof to the contrary, changes in a shoreline are presumed to have resulted from
the slow, natural processes of erosion and accretion. 78 Am. Jur. 2D Waters § 344. In Murray v.
State, 596 P.2d 805, 814-15 (Kan. 1979), the court explained that the “weight of authority, both
state and federal, appears to recognize a strong presumption, founded on long experience and
observation,” favoring “gradual erosion and accretion rather than avulsion.” The Murray court
held that the “one who claims that the change was by avulsion has the burden of showing the
avulsion.” Id.
In this case, there are no assertions that rapid avulsion ever occurred. Therefore, any
evidence of a change in the shoreline boundaries presumptively occurred from erosion and
accretion. The legal effect of this slow change is that the boundary changed as the contour
3

changed. Therefore, the court concludes that the parties should proceed to project the determined
boundary on the remaining parcels as the land exists presently. If, during this process, the
Landowner Defendants obtain evidence of any rapid avulsion on a given parcel, they can present
such evidence to the court for review. However, mere speculation of changes over the years is
not sufficient to require the State to project the boundary elevation on the land as it existed in
1896.
Dated this 15th day of September, 2014.
BY THE COURT:

____________________________________
DALE A. KIMBALL,
UNITED STATES DISTRICT JUDGE

4