For the third time in six years, a convoluted case pitting public access to rivers and streams against private property rights is back in court, raising the question of whether this increasingly important issue in the West will ever be settled.
The protracted legal fight hinges on the argument of whether the recreating public has a right of access to streams or rivers after they flow on the landowners’ of private property so long as they enter on public property.
A hearing was Monday before the Utah Supreme Court where justices were asked to determine if the 4th District Court erred when it dismissed a case involving the assertion that because navigating public waterways was a widespread practice by early Utah settlers, a public easement had been established. A decision is pending.
Herbert “Bert” Ley, vice president and director of the Utah Stream Access Coalition, said that argument failed initially at the district level because although there were newspaper articles and a digital record regarding the practice, the documentation happened before Utah gained statehood and there, of course, was no law on the books.
“The courts wrestle with facts and law,” Ley said, adding the coalition had a “mountain” of facts derived from digitized newspapers and other records.
“We had substantial evidence as (Judge Derek Pullan) recognized that the public freely touched the beds of even privately owned stream beds, running through private property prior to statehood. But the standard that we had to prove was not only did we have the facts, but could we point to the law that said this easement existed?”
The coalition, which is fighting Victory Ranch, or VR Acquisitions, and the state of Utah, appealed and is asking the Utah Supreme Court to reverse Pullan’s decision and hear the full arguments at a trial.
Utah, a state with a deep and long legal practice of honoring private property rights, has fought what it contends is unfettered access that torments landowners because of the trash, property damage and feces left behind by anglers and others.
The Utah Farm Bureau has echoed that argument and contends such access imperils the rights of ranchers and farmers as well.
One former executive with the bureau argued that the ruling affects what a landowner is allowed to restrict on private property, ultimately devaluing not only the land itself but the rights of an owner to have privacy and be secure in their investment.
“It should be a concern to property owners,” Randy Parker said years ago in response to a ruling at the time.
One of the stream access fights involved a portion of the Weber River, while Victory Ranch wants to restrict public recreation in a section of the Provo River that abuts its property, even if anglers and others entered from a public access point.
The coalition said it is committed to the principle that the waters flowing in all of Utah’s rivers and streams are owned by the public, and therefore the public should have the right to make use of those waters for lawful recreational purposes.
Correction: A previous version of this story incorrectly stated that the case filed by the Utah Stream Access Coalition questions allowing anglers and others to access a stream on private property by walking across the privately held land. The coalition has argued against trespass and destruction of property, but rather accessing the water from a public area and then being able to move about in the stream bed.