A Brief History of the Stream Access Fight in Utah
Article XVII of the Utah Constitution states: “All existing rights to the use of any of the waters in this State for any useful or beneficial purpose, are hereby recognized and confirmed.” For 105+ years, Utah Code 73-1-1 and it’s predecessor simply read: “All waters in this state, whether above or under the ground are hereby declared to be the p
roperty of the public, subject to all existing rights to the use thereof” and “The water of all streams and other sources in this state, whether flowing above or under the ground, in known or defined channels, is hereby declared to be the property of the public, subject to all existing rights to the use thereof.” Until recently, generations of Utahans understood that the waters of this State belong to the public, while in their natural beds. In 2008, after first affirming that the public owns the waters of the state and has an easement to use them, the Utah Supreme Court unanimously ruled: “the public’s easement in state waters provides the public the right to engage in all recreational activities that utilize the water” AND “the public has a right to touch privately owned beds of state waters in ways incidental to all recreational rights provided for in the easement” (Conatser v. The ruling was taken by some to be an unacceptable affront on the rights of riparian property holders, who believe that if they own the beds, they should be able to control the use of the rivers traversing their property. Such landowners (and real estate development interests) sought to limit the effect of Conatser through new legislation introduced in the following general legislative session. In 2009, HB187, which sought to limit publically-accessible waters to listed waters, was brought to the floor of the House and defeated in three separate votes – largely due to intense, entirely grassroots opposition by substituents – most of whom had never before contacted their legislators. During the 2009 interim session, Rep. Lorie Fowlke (R-Orem) lead an effort to draft compromise legislation though public process with input from anglers, boaters, hunters, conservationists, the DWR, the Farm Bureau, the Cattlemen’s Association, and landowners. The resulting bill, sponsored by Fowlke, was introduced as HB80 during the 2010 session. Simultaneously, in the confines of his own law library, and without any public input, Rep. Kay McIff drafted a competing bill (HB141), and kept it under wraps. HB141, introduced late in the session, was fast-tracked through committee and used to eject HB80 from further consideration. After much wrangling, HB141 was passed. Signed into law on the last day possible by interim Gov. Herbert, HB141 (and resulting “Public Waters Access Act”) took effect May 10, 2010, effectively overturning the Supreme Court’s ruling in Conatser. Two and one-half months later the Utah Stream Access Coalition (USAC), a Utah nonprofit corporation, was formed. USAC’s mission: to promote and assist in all aspects of securing and maintaining public access to, and lawful use of, Utah’s public waters and streambeds. In line with its mission and goals, USAC, on behalf of its 3300+ members, through pro-bono counsel, quickly filed two lawsuits challenging HB141 in Utah’s District Courts. The first of these challenged HB141 on constitutional grounds and public trust principals. Final oral arguments were heard Jan. 22, 2013, and a decision is expected by the end of March. A partial decision, issued in May 2012, found that HB141 violated Article 5 – Separation of Powers, and confirmed public ownership of the waters of Utah & an easement for their use are rooted in Article 17. The final decision potentially affects all public waters of Utah. It will be cross-appealed to the Utah Supreme Court as soon as possible. The second lawsuit addresses the navigability (and ultimately the rightful ownership of the beds and banks) of the Weber River. This case will turn on historical fact. On Jan. 30, 2013, USAC’s expert witness (a history professor from Weber State) submitted a 65-page Expert Report documenting use of the Weber for commerce prior to statehood. If deemed persuasive, this case could result in a transfer of title of beds and banks from present deed-holders to the people of Utah. In addition to its efforts fighting HB141 in the Utah Courts, USAC has been working hard to make the State Legislature aware of the issues through both grassroots efforts designed to encourage USAC members to contact their legislators, and by maintaining a strong presence at the State Capital during the 2013 Legislative Session. USAC is well aware that once HB141 is defeated in the Courts, it’s up to the Legislative Branch to create legislation that respects the rights of the public. Updated July 1, 2013
