The Ownership of Utah Riverbeds
By: Easton Smith
In Monty Python and the Holy Grail, there is a scene in which a group of roused peasants scream for the burning of a witch. They have dressed her up in a witchy outfit and brought her to the local magistrate. When asked how they know that she is a witch, one peasant responds, “well, she looks like one”. It’s a crude and juvenile humor, but for some reason the scene sticks with me.
It pops into my head occasionally when I hear vague and circular logic; when someone explains that the indigenous land that we are on belongs to us, “just because”; or when some politician says we are “number one,” without any evidence or qualification. The scene recently popped into my head as I read about the way ownership of riverbeds is decided between parties, including the State of Utah and the Federal Government of the United States. While different sides’ claims to the land under the rivers (not the water of the rivers, which is another story altogether) are rather complicated, the logic never goes much beyond the witch-hunters in Monty Python.
The State of Utah lays claim to the riverbeds under the Equal Footing Doctrine, which stipulates that, upon entry to the union, all states will be guaranteed the same rights as the original 13 states. At the birth of our nation, title to lands underlying ‘navigable waterways’ was vested to those original thirteen states, so this right to title was passed on to Utah (and all other states). The doctrine was challenged and reaffirmed by the U.S. Supreme Court in the Martin v. Wadell decision in 1842. So, the question is not who owns land, but where do we draws the lines of the land underneath ‘navigable water’?
For lakes and other bodies of water, this is rather easy to determine. Utah Code § 65A-1-1 states: “‘Sovereign lands’ means those lands lying below the ordinary high water mark of navigable bodies of water at the date of statehood and owned by the state by virtue of its sovereignty.” However, there is no sure way for testing the navigability of waters at the time of statehood, especially for wily rivers that change course frequently. But a history of legal fights have determined some standards.
In 1931 the Supreme Court heard the case of the United States v. Utah, in which the United States Government argues that “the state of Utah claims title adverse to the United States in these river beds…and that Utah without consent or authority of the United States has executed and delivered numerous oil and gas leases covering portions of these river beds and purporting to give exclusive rights and privileges.” In other words: the State of Utah and the U.S. government both wanted to make money leasing the riverbeds to oil and gas companies. So much for the ‘public good’.
The court ended up designating a ‘Special Master’ to determine the navigability of the waters in question at the time of statehood. Large swaths of the Colorado, San Juan, and Green River were declared navigable. Some sections of the San Juan and the Colorado (including Cataract Canyon, which we proudly navigate!) were deemed non-navigable. So it was decided (as it would be decided with other rivers in Utah in later court cases), that the state of Utah would have rights to most of the riverbeds, to lease them away to oil and gas companies in quiet backroom deals. I am, again, reminded of Monty Python.
In the Monty Python witch-trial scene, the magistrate rejects the evidence of “she looks like one,” and instead goes into a deeper circle of logic: if witches burn, they must be made of wood. If the witch is made of wood, she would float like wood does. Ducks also float like wood. “So, logically, if she weighs the same as a duck, she’s made of wood! And therefore… a witch!” They weigh her and find her to be a duck’s weight, a witch. The crowd is ecstatic, having proven their case!
The irony, of course, is that no one is discussing whether or not witches should be burned in the first place. Much like our state and federal governments, which in their arguing over whether or not a boat could pass down the Colorado River in 1896, seem to have overlooked the more basic question: should we be leasing out our precious river beds in the first place?
Easton Smith is a Local Wasatch Front resident and writer. He spends his time community organizing, rock-climbing, and playin’ some mean banjo. For more writing from Easton, check out his personal blog or stay tuned for future loggings in River Currents.