The state has been quietly negotiating its 102-mile "fenceline" with individual property owners around Utah Lake while at the same time suing to have that line drawn by the courts.
About 12 percent of the 200-plus lakefront property owners have already concluded a boundary agreement with the state, 24 percent are near agreement and 38 percent are in negotiation.Assistant Attorney General Stephen G. Boyden revealed the out-of-court efforts during a hearing Thursday before U.S. District Judge Dale Kimball. However, Boyden said it will take a court order to settle the state's boundary dispute with the federal government and property owner Richard W. Davis.
But attorney Robert C. Fillerup, who represents Davis and other Utah Lake property owners, told Kimball the state would try to impose any court ruling involving the United States and Davis on everyone else.
"They hope to get a decree saying it (the boundary) is the meander line, and then Utah will use it against people who are not parties to the suit," Fillerup said. "It's almost a backdoor maneuver."
If the state is trying to quiet title (remove the cloud on its claim) around the entire lake, then it must include all the property owners as defendants, Fillerup said. Based on that argument, he asked Kimball to dismiss the suit or at least limit any resulting ruling to the federal government and Davis.
Kimball agreed to the latter request and said he would sign an order excluding all other property owners from any court-ordered boundary resolution.
Filed on Dec. 3, the state's suit asks the court to quiet title to the lake bed, establish the "meander line" as the legal boundary and declare the federal government and Davis trespassers.
The U.S. Supreme Court upheld the state's claim to the lake bed in 1987 but did not establish a boundary line between the lake bed and surrounding federal and private lands. Utah insists the boundary is the federally surveyed meander line - ordinary high water mark - at the time of statehood.
Fillerup contends no one knows where the ordinary high water mark was on the date of statehood and that the state has no legal claim to all lands below some arbitrary meander line. He noted that numerous property owners, including Provo City, have established claims below the meander line.
So why is the state picking only on Davis and the federal government? Kimball asked.
Boyden responded, "This (suit) is designed to take care of two situations. The United States and Davis are the only two who challenge the title of the state."
He said the federal government challenged the title when the Bureau of Reclamation built its 20,000-square foot field office below the meander line. And Davis challenged it when he did some "dumping, dredging and diking" along the lake shore, Boyden added.
"We have a serious dispute with the United States that covers the entire lake, the entire border," Boyden said. "That's what has to be cleared up."
And the only way to resolve it is in court because, unlike private land owners, the federal government can't settle without a lawsuit, he explained. The state's suit notes that the United States allowed itself to be sued in order to establish the boundary once and for all.
As for Davis, Boyden said, "He is involved in some activity that we think is illegal if we are the owners, and we have a public trust to protect those lands."
He also said other property owners could join in the lawsuit, though the state prefers to deal with them outside of court. Boyden told Kimball the negotiating process involves "walking the land" with the property owner, agreeing on the high water mark or recognizable boundary, and then having the county survey the line.
Fillerup said he met earlier this week with Utah Lake property owners and found most of them don't accept the meander line as the boundary.
"The meander line is not where title stops," Fillerup said. "The meander line was an attempt to draw a line in the sand. It was never the boundary."