The Utah Supreme Court upholds a law making waterways difficult to access, much to the dismay of outdoor enthusiasts

The Supreme Court ruled that the Public Waters Access Act – which restricts public access to private water lines – remains law.

(Francisco Kjolseth | The Salt Lake Tribune) Brady Willison Tuesday fishes a section of the Upper Provo that runs through the 7,000-acre Victory Ranch, a luxury destination near Francis. Until a Nov. 4 court ruling invalidating Utah’s restrictive creek access law, such creeks were not accessible to anglers without the permission of the property owners. Advocates of creek access successfully sued Victory Ranch, claiming that the landowners’ practice of keeping nonguests off the river violates an easement the public has for creek bed management. But without further guidance from the court, the scope of that easement isn’t clear, lawyers say. Victory Ranch insists the verdict should be stayed pending an appeal, which the company expects to win.

The Utah Supreme Court has decided to uphold a statute restricting access to some of Utah’s rivers and creeks – a decision that will impact anglers and those who enjoy floating on many of Utah’s waterways.

On Thursday, the state Supreme Court issued an opinion affirming the Public Waters Access Act, a statute passed in 2010 that tightened rules for access to waterways across the state. The ruling upheld a 2021 ruling by a 4th Circuit judge on the same case, which overturned a previous decision.

The 2010 legislation states that the private property protections in the Utah Constitution “prevent the government from broadly recognizing or granting a public recreational easement for access to or use of public water on private property.”

Furthermore, the Public Waters Access Act states: “Public ownership of water and recognition of existing rights of use are not sufficient to overcome specific constitutional protections for private property.”

In other words, the bill distinguished public ownership of water from private ownership of land that forms the creek bed of a waterway. This means that fishermen and anglers could not wade through rivers without written permission where the area is private land from the landowner.

Shortly after the law passed in 2010, a newly formed group called the Utah Stream Access Coalition sued a real estate development company that excluded people from its Provo River lands. In the lawsuit that formed the basis of Thursday’s ruling, USAC argued that the Public Waters Access Act was unconstitutional.

Herbert Ley, vice president and director of USAC, said that despite the bill’s name, the Public Waters Access Act would remove public access to many of the state’s waterways, siding with landowners who, according to Ley, exploit the state’s natural beauty want to use for profit reasons.

“There were many moments of ups and downs where we were very encouraged by the results,” Ley told The Salt Lake Tribune. “And then, of course, ultimately disheartened by this recent ruling that ends the case once and for all.”

Ley added that the Public Waters Access Act has effectively stripped the public of the right to engage in recreation along about 43% — or 2,700 miles — of Utah’s fishable waterways.

While Thursday’s ruling does not change existing state law, it effectively closes the door on future relaxation of waterway access rules.

As of now, state law allows people to swim on the surface of the water even if the land below is private property, but stopping is prohibited. People who wish to swim fish can do so if they have legal access to the water. That access could be “from a highway, public property, or private property with written permission from the landowner,” according to the Utah Division of Wildlife Resources.

In a press release following the decision, USAC wrote, “Today’s decision completes just one of several avenues the coalition is taking to restore public access to Utah’s rivers and creeks.”

USAC has prevailed in other stream access cases in the past. The nonprofit petitioned the Utah Supreme Court that portions of the Weber River, from Holiday Park to Echo Reservoir, were “navigable water” protected by state law as public transportation.

“So the main question in this case was, ‘Was the Weber River used for trade before Utah became a state?'” Ley said. “If so, the Weber River is a ‘navigable waterway.'”

In November 2017, the court found that the section of the Weber River was a navigable waterway that provided special protections for recreational access along the river. Many of Utah’s major rivers, including the Green, Colorado, Bear, and portions of the Jordan, are all considered navigable waterways.

Ley said he believes there are other navigable waterways in the state, but they are not designated as such. He said it should be up to the state to protect and conserve Utah’s navigable waters, but there is “a significant resistance in Utah to recognizing that we have rivers that are truly open for public use because of navigability should.”

He added that USAC is not necessarily done with the lawsuit and may file another lawsuit if it believes it is warranted. Anyway, Ley said the state, not his group, should protect its waterways.

“If the Utah Stream Access Coalition needs to file another lawsuit on another river, then so be it, but it really shouldn’t be our responsibility,” he said.

Justin Scaccy

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