A court ruling this week upholding the right of anglers and others who want to use a 1-mile stretch of the Weber River for recreation could be a prelude to an even bigger win for the public, a lawyer for the Utah Stream Access Coalition said Friday.
The Utah Supreme Court heard back-to-back arguments on Jan. 9 in separate appeals involving access to the banks and beds of two rivers, the Weber and the Provo.
On Wednesday, the justices affirmed a 3rd District judge’s ruling that the public could access the banks and beds of a 1-mile stretch in Summit County of the Weber River. Coalition President Kris Olson applauded the decision.
“Our rivers are part of our heritage, and have been useful to all Utahans since statehood,” Olson said in a written statement. “They are ‘gifts of providence,’ our natural resource, and now in the case of this stretch of the Weber, secured for future generations.”
The Utah attorney general’s office declined to comment on the ruling.
A decision is pending in the second matter, which concerns fishable stretches of the Provo River.
Cullen Battle, an attorney for the Utah Stream Access Coalition, said that because that case addresses the constitutionality of a law limiting access to rivers, a ruling favorable to his group would give the public “the right to use any and all rivers in the state.”
The appeals are part of a long battle that has pitted anglers against riverside landowners in Utah.
In 2010, the state Legislature passed the Public Water Access Act, also known as HB141, which allowed property owners to restrict access to streams crossing their land, but only if the waterways are considered not navigable. Boaters can still float rivers through private land, but they may not stop or step on the bed or bank.
The owners along the mile-long stretch of the Weber River discouraged floating and fishing by putting up no trespassing signs and stringing barbed wire across the river near Peoa, according to the coalition.
The Utah Stream Access Coalition — whose members include anglers, birders and paddlers — filed suit in 3rd District Court seeking to confirm public ownership of the riverbed and the right to access it.
The case went to trial in 2015 and the key issue was whether the section of the river was considered “navigable” under a legal definition. At statehood, on Jan. 4, 1896, Utah gained sovereign title to the beds of all waters in the state then navigable.
Judge Keith Kelly ruled that the section was navigable and publicly owned, giving the public a right of access. Among the evidence he cited was testimony on the history of statehood era commercial uses of the Weber River, which included floating logs and railroad ties, some of which passed through the landowner properties.
Battle said Kelly’s ruling covers more than the mile at the center of the case.
Previously, log drives could not be used as evidence of commercial use, he said, but that activity now is considered sufficient evidence under the standard set in the judge’s decision. And that gives the public access to any other portions of Utah’s rivers that have a similar history of log drives and other commercial uses, according to Battle.
The private landowners, who said logs don’t count and that the river had to carry boats in its natural and ordinary condition to be considered navigable, appealed Kelly’s ruling.
The Supreme Court opinion does not take a position on who holds title to the streambed, leading to a partial dissent from Justice Christine Durham. The now-retired justice said she believes U.S. Supreme Court precedent “mandates that we recognize the State’s title when a waterway is determined to be navigable.”
In the companion Provo River suit, landowners appealed after 4th District Judge Derek Pullan invalidated core provisions of the Public Water Access Act in November 2015.
The Utah Stream Access Coalition said it expects in the near future a final ruling from the Supreme Court on the Provo River lawsuit, which challenges the constitutionality of the Public Water Access Act in its entirety.
