This 2023 Legislative Session, H.B. 208 “Criminal Trespass Amendments” was passed. Sponsored by Rep. Scott Chew, H.B.208 assigns a defined penalty for wading and walking on stream beds and banks of non-navigable waterways that flow through privately owned property by authorizing law enforcement to issue a class B misdemeanor for offenses. Currently, this type of activity is already characterized by existing law as trespassing. However, there are no specific criminal repercussions specified by the existing law to be issued at the scene by law enforcement. This new bill, which is on its way to being signed into law by Governor Spencer Cox, will change that.
Stream access in Utah can be characterized in one word – complicated. The basis for current stream access law in Utah is outlined in the Public Waters Access Act of 2010 (commonly still referred to as H.B. 141). At a high level, the Act breaks rivers and streams into two categories: (1) “navigable”, meaning that the river or stream has a history of commerce use at the time of statehood, and (2) “non-navigable”, meaning the opposite. In both cases, the people own the waters of the state. In other words, as long as one accesses the waterway from a publicly accessible area (i.e. public land, overpass, easement, etc.), then they are legally allowed to float the water, regardless of if it flows through private land. However, if the river or stream is classified as non-navigable, one is not legally allowed to wade on the streambed or banks of the portion of the waterway that flows through private land unless a public recreational access easement exists, or permission is granted. This would be considered trespassing on the private land through which the water flows. Individuals are allowed to wade up to the high-water mark on navigable rivers and streams. Prior to the Public Waters Access Act, there was a 2008 Utah Supreme Court Case, Conaster vs. Johnson, which set a different understanding for stream access in Utah. This court ruling stated that the public’s right to use of waterways includes “an easement over the water regardless of who owns the bed beneath.” It also stated that this right extends to touching the stream bed underneath the water, “even if the stream bed is considered private property.” Thus, the Public Waters Access Act effectively overturned that Supreme Court decision in favor of private landowners. The Public Waters Access Act is now being challenged in the Utah Supreme Court, but today, it is the law.
In attempting to abide by the current law, an angler might first ask, “which streams are classified by the State as navigable?” The problem: the State has not publicly determined through a standardized legal test which rivers and streams are navigable vs. non-navigable, nor has it established a public process to formally make this determination. Currently, the only way to officially recognize if a river or stream is navigable is through litigation, which can take years and immense monetary investment to result in a formal decision. We’re effectively operating in a “could be argued as non-navigable until deemed otherwise” environment, which puts public waters anglers in a tricky and disadvantaged position. At this point in time, there is only one navigable waterway recognition by the Utah Supreme Court; a one-mile stretch of the Weber River as outlined in the Utah Stream Access Coalition vs. Orange Street Development case decision from 2017. There are certainly other stretches of river flowing through private land that would be considered navigable per the legal test applied in that case, but until recognized as such by the court system, it is up in the air. Given these circumstances, private landowners tend to benefit from the ambiguity in the current law, whereas anglers (often) tend to lose.
While BHA can support penalizing illegal trespassing on private lands, our Chapter expressed concerns with H.B.208 “Criminal Trespass Amendments” during the Session which were voiced at the Senate Natural Resources, Agriculture, and Environmental hearing on Feb. 21, 2023. Given that there is no administrative legal process outside of litigation to determine and publicly recognize which waters are navigable vs. non-navigable, there is not yet a just foundation upon which to base a potential misdemeanor trespass charge. The real trouble that law enforcement officers and the public are faced with right now is the ambiguity with the current law; identifying which waterways are navigable vs. non-navigable or have public recreational access easements, and therefore, knowing which rules apply on Utah’s various waterways. This new law will not solve that problem and could potentially create more confrontations and confusion.
Lastly, H.B.208 is very one-sided and looks to only defend landowners in stream access disputes. But what about the private landowners who are wrongfully harassing law-abiding anglers that are wading up to the high-water mark on navigable rivers and streams? Or those private landowners on a navigable waterway who post signage stating that wading the stream beds/banks adjacent to their private property is trespassing? What is the proposed punishment for those individuals? H.B.208 fails to address these equally frustrating circumstances.
To remedy the challenges for private landowners, law enforcement, and anglers, the Legislature should focus on ways to provide clear guidance to law enforcement agencies and the public on which rules apply to which waterways instead of creating a redundant law with the ability to issue a misdemeanor lacking a solid basis. Before BHA can support criminalizing this type of trespassing, there needs to be more clarity on the navigability issue.