Legislature vs. Supreme Court: Utah’s Complicated Battle Over Stream Beds and Fishing Access

In 2008, for the third time, the Utah Supreme Court ruled in favor of the public’s rights to use the rivers and streams of Utah, so long as they participate in legal activities. The ruling in Conatser v. Johnson set off a firestorm of rhetoric and sky-is-falling bravado by property rights groups and developers of exclusive “trout ranches.” Their claim: With this decision, the very foundation of our state constitution had been eroded.

In fact, just the opposite was true. The Conatser court, like the courts before them, took their lead directly from Article XVII of the Utah Constitution:

All existing rights to the use of any of the waters in this State for any useful or beneficial purpose, are hereby recognized and confirmed.

Among those rights, the court observed, is the right to utilize the waters of the state (and their respective streambeds), for any lawful activity. This idea is not new and was common knowledge as early as 1920, when Utah Fish and Game Commissioner RH Siddoway reminded anglers and property owners alike that:

Fishermen have rights also. The waters of the state belong to the state. The fish contained therein are also the property of the state. Fisherman may wade any of the streams of the state. If ordered off of the property of any owner thereof, they cannot be ordered out of the streams.

To address this conflict, Rep. Lorie Fowlke held a series of interim meetings in 2009 with any stakeholder on the stream access issue willing to consider the public’s rights. Her bill was an expertly crafted touchstone of compromise and held the promise of settling Utah’s stream access issue for generations to come.

That was, until a competing bill was introduced in the final days of the 2010 session. Drafted behind closed doors with the explicit purpose of serving private interests, fueled by dark lobbying money, the so-called “Public Waters Access Act” was shoved through the legislature on pre-greased rails. With Gov. Gary Herbert’s enthusiastic signature, the exclusive rights to use over 2,700 miles of rivers and streams in Utah (about 43 percent of Utah’s fishable waters) were gifted to private interests. The common angler became a criminal if he or she touched privately owned beds without written permission to do so.

The Utah Stream Access Coalition was founded a few short months later. Within 10 months, the coalition had filed two separate lawsuits on two sets of legal grounds. The first lawsuit challenged the new law in its entirety – alleging that it served no public interest and violated several articles of the Utah Constitution. It named both the State of Utah and Victory Ranch, a private development on the Upper Provo River that aggressively lobbied for the act’s passage. The second lawsuit sought to prove that the Weber River was navigable based on its statehood-era use for transporting railroad ties to railroads and prop timbers to mines. If declared navigable, federal law holds that the Weber’s beds and banks were sovereign lands open to public use and the trespassing provisions of the 2010 act were moot.

While the lawsuits worked through the courts, the coalition attempted to bring compromise legislation year after year. USAC sought to find an amicable solution that would stand the test of time, yet no parties were interested in coming to the table. The reasonable, sensible compromise being proposed was met with more of the same rhetoric, sky-is-falling claims, misinformation and revisionist history.

Last year, both of these cases at the district court level finally came to an end, and USAC prevailed on virtually all counts. In one case, a one-mile stretch of the Weber River was declared navigable, and in the other, the “Public Waters Access Act” was declared unconstitutional. Anglers and boaters rejoiced in knowing that their rights were upheld though USAC’s grassroots efforts and the remarkable work of their pro bono counsel.

A mere 113 days later, one judge from the Utah Supreme Court placed a stay on the lower court’s decision and effectively re-closed 2,700 miles of river and streams pending the High Court’s review of the lower court’s ruling during the appeal process (these two appealed cases present the high court a fourth and fifth opportunity to rule on the public’s rights to use the public waters of Utah). Once the Utah Supreme Court rules on both cases, most likely in 2017, it’s up to the legislature to get it right and balance private property protections with public use of the waters.

The Utah Stream Access Coalition will continue to be vigilant and fight for the public’s rights. The forces that would eliminate all public access to rivers and streams in Utah, Montana or New Mexico are not confined to these three states. They are a cancer that plagues all of us in the West. We must do all we can to snuff out these efforts to privatize public resources. That is exactly what USAC has been doing for Utah’s water recreationists for the past six years.

About Kris Olson

Kris is the president of USAC, an avid angler, and a born-and-raised Idaho boy. When not on the river, he’s working on his M.D./Ph.D. at the University of Utah.

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