Hoping to Fish or Boat on Utah Waters? The Utah Supreme Court May Soon Clarify Your Access Rights.

After nearly a decade of uncertainty, Utahns and visitors alike are looking forward to certainty on two key issues: (1) public access to and (2) navigability of the Beehive State’s premier rivers.  

It all started with Conatser v. Johnson, where the Utah Supreme Court held that the scope of the public’s easement in state waters “provides the public the right to float, hunt, fish, and participate in all lawful activities that utilize the water” and that 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.”  In response, Utah lawmakers passed H.B. 141: Recreational Use of Public Water on Private Property in 2010, tightening public access to the state’s rivers and streams.  The law prohibits recreational water users (including anglers, kayakers, tubers, hunters and others) from walking on the private bed of a public waterbody.  According to the law, individuals fishing or recreating in public water that flows over closed private property may not walk on the land beneath the water without obtaining landowner permission. 

Violation of H.B. 141 amounts to trespass (i.e. unlawful entrance onto the private property). Landowners may close their property to trespass by posting a notice or otherwise communicating that access is prohibited. By default, irrigated pastures, cultivated lands and certain fenced areas are presumed closed to trespass.  See Utah Code Sections 23-20-14, 76-6-206 and 76-6-206.3.

H.B. 141 allows recreators to float on the surface of the water and fish while floating, even over private property that is closed to trespass. However, the right to float only applies under the following conditions:

•    The water must have sufficient width, depth and flow to float a vessel.
•    Individuals and their vessels must move with the current and not anchor or stop.
•    The water must flow in a natural channel, or it must collect in a natural lake, pond or reservoir on a natural channel.

The public easement to float does not apply to any of the following waters on private property:

•    A jurisdictional wetland (as defined in 33 C.F.R. 328.3)
•    An impounded wetland (a shallow body of water formed or controlled by a dike, berm or headgate)
•    A migratory bird production area (as defined in Utah Code Section 23 28 102)

Although H.B. 141 strictly prohibits trespass, incidental contact with the private bed as required for safe passage and continued movement of individuals and their vessels is not prohibited by H.B. 141. Similarly, portage around a dangerous obstruction in the water is permitted, so long as the most direct route that follows closest to the water is taken.

Shortly after the enactment of H.B. 141, the Utah Stream Access Coalition (the “Coalition”) successfully challenged the law for eliminating access to 2,700 miles - or 43 percent - of the state's rivers and streams in Utah Stream Access Coalition v. VR Acquisitions LLC.  The Coalition centered its argument on the assertion that the 2010 law was unconstitutional because it applied too broadly and cut off access to a resource that is held in trust for the public — sportsmen, recreationists, and property owners alike.  The State and private property owners appealed. 

In a corollary case, Utah Stream Access Coalition v. Park et al., the Coalition contended that the Weber River is a “navigable river” because it has long served as a highway for public commerce and recreation - relying on National Parks and Conservation Association v. Board of State Lands, 869 P.2d 909, 919-20 (Utah 1993) (state has a public trust obligation to protect “public recreational uses [of sovereign lands] for the benefit of the public at large”); Utah Code § 73-29-201(1) (“[t]he public may use a public water for recreational activity if the public water ... is a navigable water”). 
 
Under H.B. 141 the beds of navigable rivers are public property up to the ordinary high water mark, and adjoining private property owners may not interfere with the public’s right to use the river corridor for lawful recreational purposes.  The Coalition directed the Weber River complaint at landowners along the banks who apparently took action into their own hands to enforce H.B. 141. According to the facts argued, some Defendants posted signs at a public road crossing stating that the banks and bottom of the Weber River are private property, and that access to the river from the public right of way is forbidden. Another defendant allegedly built a barbed wire fence across the river—an action that endangers boaters and hinders people travelling by foot along the river bed.

The trial court’s ruling affirmed the navigability of the Weber River, one of Utah’s premier canoeing, kayaking, and blue-ribbon trout streams, over “the one-mile stretch” -  the one-mile reach of the river in the vicinity of the Browns Canyon Bridge challenged by the Coalition - but did not formally adjudicate the navigability of the other approximately 124 total miles of the entire river, or even the other 39 miles of the “Upper Weber” between Holiday Park and Echo, Utah.   Again, private property owners appealed.

After issuance of a stay in 2015, H.B. 141 remains in effect while the Utah Supreme Court hears and considers the appeal of both the public waters and navigability cases.  On January 9, 2017, the Utah Supreme Court heard back-to-back oral argument on the cases.  A final ruling on each appeal is expected from the High Court in the following months.

Stream access and navigability issues are not unique to Utah, but the laws and public policies vary substantially state to state across the West.   For example, what counts as trespassing in Colorado may be fully legal in Wyoming . . . the key is to know before you go.   
 

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