theflylords

A couple of months ago, we began to notice a lot of news headlines and social media activity surrounding Utah waterways, public access, and ongoing court cases. So, we reached out to some friends, who all pointed us to the Utah Stream Access Coalition. Follow along to learn more about this great organization and how they work to secure public access to Utah’s waterways. 

Flylords: Let’s hear about how the Utah Stream Access Coalition came to be?

USAC: The Utah Stream Access Coalition, also known as “USAC” or “The Coalition,” was formed on July 29, 2010, in direct response to, and a mere 80 days after, the Utah Legislature and Governor enacted the perversely-named Public Waters Access Act, or “PWAA.”  When it became the law of the land, the PWAA effectively privatized 2,700 miles, or about 43%, of Utah’s fishable waterways – where those waterways traverse privately-owned beds while flowing through privately-owned lands. That decision essentially overturned a 2008 ruling by the Utah Supreme Court in a case called Conatser v Johnson that confirmed, based upon the long recognized public ownership of the waters of the state, that while those waters flow in their natural and realigned channels that the public has:

“… the right to float, hunt, fish, and participate in all lawful activities that utilize the [publicly-owned] water. [And,] …the public has the right to touch privately owned beds of state waters in ways incidental to all recreational rights provided for in the easement, so long as they do so reasonably and cause no unnecessary injury to the landowner.”

Put another way, when it was enacted the PWAA simply abolished the rights that the Utah Supreme Court had so clearly, and unanimously, defined just 2 years prior. 

So basically, USAC formed to seek repeal of the PWAA and reinstatement of the public recreational access rights recognized by the Utah Supreme Court in Conatser.

Flylords: USAC’s mission statement reads, “To promote and assist in all aspects of securing and maintaining public access to, and lawful use of, Utah’s public waters and streambeds.” How accessible are Utah’s waterways for anglers? 

USAC: Utah only has about 6,300 total miles of “fishable waterways.”  These “fishable waterways” are defined as those rivers and streams that support a fish population of sufficient size and quality to provide enjoyment for licensed recreational anglers. As noted above, the PWAA put 2,700 miles (or about 43%) of these fishable waterways out of reach of Utah’s anglers, unless those anglers could secure written permission to fish these otherwise inaccessible waterways from the owner of the beds over which they flow. This leaves about 3,600 miles of fishable waterways remaining for Utahns to enjoy, but many of these are small headwater streams traversing National Forest lands, which are generally inaccessible during the Winter and Spring months, and difficult to access and fish when they are not snowed in.  

Also in the “still-accessible” category would be larger waterways that either flow over other types of public lands, or flow over privately-owned beds that are encumbered by easements that allow for public recreational use, but because such easements are not commonly found on our small to mid-sized rivers like the Provo, Weber, Ogden, Logan, Upper Bear, and Sevier, where most of the beds are privately-owned, so such “still accessible” waterways are few and far between. 

Fortunately, even under the PWAA the public has the right to use all “navigable” waterways in the State for lawful recreational activities that utilize the water and touch the beds and banks of such navigable waterways up to the “ordinary high water mark” – where the banks meet adjacent dry lands.  However, the State of Utah has yet to conduct a proper inventory of what rivers and streams meet the legal test for navigability, and has yet to inform the public which waterways are open for recreational purposes on account of meeting that legal test.

Flylords: Describe your approach to defending and expanding stream access for Utah’s anglers.

USAC: USAC has tried several approaches in the past for defending and expanding stream access in Utah. First and foremost among these is encouraging our members, and members of the angling public, to contact their elected officials (their Utah State Representative and Senator) to try and get the PWAA repealed by explaining how important river and stream access is to them (the constituents), and to their children, grandchildren, and the generations of anglers to come.  

Next, on multiple occasions USAC has developed and proposed legislation designed to find a better balance between public recreational rights and private property rights – legislation that would amend the PWAA to not only allow for increased public recreational access, but also add additional provisions to protect landowners from misuse and abuse of their lands by recreational users, and increase their liability protections if an accident happened to a member of the public while they are recreating on privately-owned land.

Most recently, during the 2022 General Session of the Utah Legislature, USAC, through its sponsor, introduced draft legislation that was designed to create a process whereby the Utah Division of Forestry, Fire and State Lands’ Sovereign Lands Program was empowered to conduct a comprehensive survey of which waterways in Utah met the legal test for navigability, and make public their assessments in the form of declarations of navigability that could be challenged by landowners who might disagree.  

That draft legislation from 2022 (HB129), and all of the “compromise legislation” that USAC has proposed before it, was never allowed out of the House Rules Committee to be considered and debated by House and Senate Natural Resources, Agriculture and Environment Committees, much less the full Utah House of Representatives or full Utah Senate. In other words, all of USAC efforts to advance compromise legislation to replace or amend the PWAA have been stymied and suppressed by certain powerful forces in the Utah Legislature.

Unfortunately, the sad truth is that rational arguments and legislation just don’t work in the Utah Legislature with the majority and power structure currently running the show. Specific Legislators are dead-set against opening up public access to waterways flowing over privately-owned beds, and they don’t give a damn what the Utah Supreme Court said in Conatser in 2008. Indeed, these Legislators view the right of the property owner to exclude others as sacrosanct, despite the fact that all their constituents equally own the waters flowing over the privately-owned beds in the State.

Sadly, the only thing that does work in Utah – albeit glacially slowly – is lawsuits and litigation, and USAC took this fight to the courts almost as soon as it was founded.  Despite taking its fight to the courts early on, the most momentous of the two cases brought is still pending today, some 12+ years later.

Flylords: Can you tell us about some of the recent court cases USAC has worked on in recent years?

USAC: Since USAC initiated its two court cases not long after it was formed, they aren’t really “recent cases,” but they are important ones. Happily, one of these two cases was finally resolved with a Written Decision from the Utah Supreme Court in 2017, but the other lingers on. This still unresolved case was actually the first one brought by the Coalition. We refer to it as the “Public Waters – Right to Use” case, although it is formally known as Utah Stream Access Coalition v VR Acquisitions LLC (or USAC v Victory Ranch). It challenges the PWAA on constitutional grounds, and was initiated when USAC filed its Complaint in Utah’s Fourth District Court on November 12, 2010 – just 105 days after the Coalition was founded. This case is now back before the Utah Supreme Court for the second time in six years. It’s an extraordinarily complex litigation that seems to have gone back and forth over its 12+ year history. We’ll say more about it below.

Meanwhile, the case that was finally resolved in USAC’s favor is the one we refer to as the “Weber River Navigability” case, which is formally known as Utah Stream Access Coalition v Orange Street Development (or USAC v Orange Street). USAC brought this second case in an effort to test a theory that the Upper Weber River meets the legal test for navigability based upon evidence of the river’s commercial use prior to Utah becoming a State. This case was initiated with a Complaint filed in Utah’s Third District Court on May 3, 2011. The District Court sided with the Coalition when it released its Final Ruling and Judgement on April 30, 2015, and the Utah Supreme Court affirmed the District Court’s navigability findings in the Written Opinion it released on November 22, 2017, following an appeal by the defendants. 

As noted, USAC initially prevailed in this case when the Third District Court released its Final Ruling and Judgement in April of 2015. That Ruling confirmed that, based upon the evidence USAC presented at trial, the Weber River – at least where it traverses the one-mile test segment of the river where landowners were excluding the public from using the riverbed – had been used for commerce prior to Utah becoming a State, and therefore met the legal test for navigability. That evidence documented multiple successful railroad tie and log “drives,” in which the Weber River was used in its natural state, during periods of peak flows during Spring runoff, to transport hundreds of thousands of railroad ties and other timber products, such as prop timbers for Park City’s mines, from where they were cut in the forests near the headwaters in the Uinta mountains downstream to where they were taken out of the river near the towns of Wanship and Echo, to be put to use. The District court concluded that, (a) based upon the evidence presented at trial, the Weber River is navigable in fact and navigable in law where it passes through the one-mile test segment; (b) the State of Utah holds sovereign land title to the bed of the Weber River below the ordinary high water mark through the one-mile test segment; and (c) the Coalition’s members and the general public are entitled to use the streambed for all lawful recreational purposes up to the ordinary high water mark.   

Also as noted, this District Court Ruling was appealed to the Utah Supreme Court by the landowner defendants who held title to the beds through the one-mile test segment. On 11/22/2017, the Utah Supreme Court issued its Written Opinion affirming the District Court’s Ruling that the Weber River was indeed navigable and, therefore, open to the public for all lawful recreational uses up to the ordinary high water mark.

As a result of this Supreme Court Opinion, the State of Utah, through it’s Division of Wildlife Resources, formally announced that the beds and banks of the upper Weber River from the confluence of it’s three feeder forks in Holiday Park, at the edge of the Uinta mountains, downstream some 40 miles to the town of Echo, are open to public recreational use. And although the public must get in and out of the river by way of a legitimate public access point, while they are within the river bed they may make full use of that bed up to the ordinary high water mark for all lawful recreational purposes, regardless of who owns the land over which this portion of the Weber River flows.

This Decision from the Utah Supreme Court was significant for at least two reasons:  (1) it demonstrated that the floating of timber products represented an important commercial use of rivers in the State of Utah that could serve as the basis for the legal test for navigability; and (2) it established the precedent that evidence of tie and timber drives conducted prior to Utah becoming a State was sufficient to confirm that a river in the State of Utah was navigable in fact, and therefore the beds and banks of such a river (up to the ordinary high water mark) should be open to public use – in perpetuity – for lawful recreational purposes that utilize the water.  Moreover, this Decision is monumental because once a river is legally determined to be navigable the Utah Legislature has no authority to abolish or restrict public use of the beds or banks of that river, up to the ordinary high water mark, for lawful recreational purposes.

Flylords: What about the major litigation currently pending at the Utah Supreme Court regarding the Provo River? What is the case about?

USAC: The litigation currently pending at the Utah Supreme Court – USAC v Victory Ranch - is not new. It is the latest chapter in the 12+ year saga of the Coalition’s constitutional challenge of the PWAA, which was initiated when USAC filed its Complaint in Utah’s Fourth District Court on November 12, 2010. How this case ended up back at the Utah Supreme Court for the second time is a complicated story with lots of twists and turns.

Here is a description of the case from its inception to where we are today, written primarily by Cullen Battle, who, as one of USAC’s pro bono attorneys (now retired), along with Craig Coburn (not retired) helped prosecute this case from its inception through its first trip to the Utah Supreme Court:

INTRODUCTION:

The Coalition brought this case, known as the “Public Waters – Right to Use” or “Victory Ranch” case, to overturn Utah’s perversely named Public Waters Access Act (HB 141 [2010] or PWAA) on constitutional grounds. In the 2008 case of Conatser v Johnson, the Utah Supreme Court unanimously held that the public’s right to lawfully access and use its public waters for any lawful activity, including recreation, allowed the public to reasonably touch the privately-owned beds of public waters in ways incidental and necessary to such use. In 2010, with passage of the PWAA, the Utah Legislature purported to overrule the Conatser decision and abolished the public’s right to touch privately-owned streambeds when using public waters. The Coalition contends that the public’s right to use public waters in place (i.e., in their natural or realigned channels) was recognized and confirmed in the Utah Constitution at statehood and that the PWAA violates this right. It further contends that the PWAA violates constitutional and other public trust and separation of powers principles. A favorable ruling in this case will restore the public’s right to use public waters in place as confirmed in Conatser.

PROGRESS TO DATE:

The case was filed in November of 2010 against Victory Ranch and the State of Utah in the Fourth District Court. After years of motions, the case went to trial in 2015, resulting in a judgment declaring the PWAA unconstitutional under Article XX of the Utah Constitution, because it disposed of the public’s Conatser rights in a manner inconsistent with public trust principles. The State and Victory Ranch appealed the judgment to the Utah Supreme Court, and after four more years, the Supreme Court reversed the judgment and sent the case back to the district court for further proceedings, and to determine, first, whether Conatser rights existed in 1895, when the Utah Constitution was adopted. That issue was litigated, and the district court concluded, without holding a trial, that while “[t]he Coalition has come forward with substantial evidence that in the last half of the 19th century, Utahns widely and freely touched and used both public and private beds of Utah’s lakes, rivers and streams for a variety of purposes, including recreation …. the Coalition has failed to prove that this historical use gave rise to a public easement dictated by our law in the late 19th Century.” The Coalition appealed this ruling to the Supreme Court and is asking for the case to be sent back to the district court for a full trial on the Coalition’s “substantial evidence” of the existence of public easement rights at statehood. Oral arguments were heard by the Utah Supreme Court on January 9, 2023, and the case is currently under advisement, with a decision expected in three to six months (i.e., somewhere between April and July of 2023).

NEXT STEPS (as of March 2023):

First, we wait for a decision from the Supreme Court, which is now expected in the next one to four months. If we get a favorable decision, we will likely go back to the district court for further proceedings on the Coalition’s claim that the PWAA is unconstitutional. If the Supreme Court’s decision is unfavorable, this case will be over, and the PWAA will stand. Under the latter scenario our only recourse will be to convince the Legislature to repeal or change the PWAA. In the meantime, our rights to use Utah’s public waters will be limited to navigable waterways, such as the upper Weber River and Utah’s Green River. And, based upon evidence it has already collected, assembled, and turned over to the State, the Coalition hopes to expand the list of Utah’s navigable waterways to eventually include another dozen or so of our larger rivers and streams where the evidence shows they were used for commercial purposes before Utah became a State.

Flylords: During the last General Session of the Utah Legislature, which ended on 3/3/2023, USAC sought to block passage of House Bill 208 (HB208) – Criminal Trespass Amendments.  What was that about? 

USAC: HB208 – Criminal Trespass Amendments (of 2023), is yet another example of the Utah Legislature simply “piling on” in its efforts to completely block public recreational access to rivers and streams flowing over privately-owned beds through privately-owned lands. The express purpose of the Bill, according to its sponsor, was to provide clarity to the public and to law enforcement, by tying trespass and associated penalties to the touching of beds of non-navigable waterways. While USAC has always respected private property rights, and has indicated countless times that it would like to see existing trespass, vandalism and litter laws enforced, the Coalition decided that it had to oppose the passage of HB208 for the following reasons:

1. Current trespass laws, in conjunction with the PWAA, already prohibit the touching of privately owned stream beds without the permission of the owner of those beds.  The penalties in our existing statutes are the same as those in HB208, making HB208 superfluous and redundant to existing law.

2. According to its Sponsor, HB208 was intended to clarify for the public and law enforcement that touching the beds of non-navigable waterways constitutes trespass.  Unfortunately, the State of Utah has yet to conduct a comprehensive review of the navigability of Utah’s major rivers and streams to determine which are navigable and which are not.  Unless and until the navigability of these waterways is determined, Utahns and their law enforcement officers simply cannot know where the provisions of HB208 apply.

3. The Coalition challenged the constitutionality of the PWAA – which serves as the foundation for HB208 – in a lawsuit (USAC v Victory Ranch) initiated on 11/12/2010. Oral arguments were heard by the Utah Supreme Court – for the third time in six years – in this case on 1/9/2023. The matter is presently under advisement by the Court and a Written Decision – which could very well address the public’s right to touch the privately-owned beds of non-navigable streams – is expected in a matter of months.  Enactment of HB208 in advance of the Court’s Written Decision would be premature, at best.

4. As written, HB208 fails to establish any repercussions for landowners misrepresenting a navigable stream or river as a non-navigable stream or river, or harassing, or seeking the citation and/or removal of a member of the public exercising their legal right to use the beds and banks (to the ordinary high water mark) of navigable streams or rivers for lawful recreational purposes that utilize the publicly-owned waters of the State.

Unfortunately, HB208 passed overwhelmingly in the 2023 Legislative Session and is expected to be signed into law by Governor Cox.  Meanwhile, the Coalition fully intends to track the conflict created in the wake of the attempted enforcement of this bill’s confusing language on rivers and streams that may, or may not, be navigable.

Flylords: How can anglers get involved with USAC?

USAC: Finally, an easy question! Anglers can get involved with USAC by simply joining the Coalition. So long as they support the Mission of the Coalition, they can join our ranks, and they can do so for free. The easiest way to sign up as a member is to go to the website membership page, enter your email address in the open box and click “GO.” This will take you to a brief application where we ask for basic information, including your zip code, so that we might contact you if you are a Utah resident living in specific Legislative District, to help make the case for access to particular State Legislators (Representative and Senators).  

But you don’t have to be a Utah resident to join the Coalition, and you don’t even have to plan on fishing here. Indeed, the Coalition welcomes like-minded individuals from other states or countries to join us, and is fighting for the rights of all people that enjoy recreational activities that utilize the water – anglers and boaters alike.

We should add, for those who may be wondering:  We will never sell your contact information and we won’t overload your inbox with excessive emails. We only send out emails when there is news that we believe will be of interest to our members.  This usually means updates on our legal and legislative battles, and news of community events and happenings. This has worked out to be roughly one email every 2 to 3 months, on average.

Lastly, we would be remiss if we didn’t say, once again, that the best thing that Utah anglers can do to support the mission of the Coalition and work to secure and maintain public access to, and lawful use of, Utah’s public waters and streambeds, is to contact their own State Representative and State Senator, and tell these elected officials – who are supposed to represent the interests of all of their constituents – how they, the constituents, feel about river and stream access in Utah, and why it’s important for our Legislators to support public recreational use of Utah’s publicly-owned waters flowing in our rivers and streams, regardless of who owns the beds beneath them.

Photos and responses by USAC’s Herbert Ley