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Group sues over stream access

Published November 19, 2010 2:30 pm

Recreation • Water act is unconstitutional, nonprofit says.
This is an archived article that was published on sltrib.com in 2010, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Eight months after the governor gave life to a law that restricts the public's access to Utah's rivers and streams, a group has made a push to get back to the water's edge.

The Utah Stream Access Coalition, a nonprofit group created to preserve public access to the state's waterways, filed a lawsuit Friday challenging the constitutionality of Public Waters Access Act, which was passed by the Legislature in 2010.

The act countered a 2008 Utah Supreme Court ruling that waterways in the state are publicly owned, and put most streambeds crossing private lands off-limits unless anglers have a landowner's permission.

Hundreds of residents called the Governor's Office and sent e-mails, weighing in on the controversial legislation before it was passed.

The coalition's lawsuit argues that since the state constitution guarantees public access to rivers and streams and limits the Legislature's power to counter Utah Supreme Court decisions, the act is unconstitutional.

The act abandons a "fundamental principle of Utah law and prohibits public access to hundreds of miles of rivers and streams in Utah, many of which have benefited from publicly funded habitat restoration, stream bank restoration and other projects, and effectively gives riparian landowners exclusive rights to access and ... to sell that exclusive access to the highest bidder," the coalition writes in a press release.

The act is also unlawful by allowing property owners to prevent public access and law enforcement to penalize people using the state's waterways, the lawsuit states.

Since the act went into effect, various members of the coalition have been chased off riverbanks, harassed by agents of riverside landowners and cited by law enforcement, the lawsuit states.

It specifically mentions incidents involving Victory Ranch, a Wasatch County development along the Provo River, and riverfront property owned by Silver Creek-Robert Larsen Investors. Both companies are defendants in the lawsuit.

The Utah Division of Wildlife Resources and Wasatch County Sheriff Todd Bonner, who have cited or warned coalition members for trespassing, also are defendants.

The lawsuit asks that:

• public ownership of the state's waterways be returned to the citizens of Utah.

• stream and river access be restored to the public.

• property owners be forbidden from impeding access to waterways.

• law enforcement stop penalizing those who use rivers and streams.

Rep. Mel Brown doubts the Legislature will make any changes on the act this upcoming session. He said the 2008 Supreme Court decision was not based on constitutionality but on statutes. "They file a suit, so be it," Brown said. "The Supreme Court in Utah needs to rule on it constitutionally and maybe this will force that. But in the meantime we are not going to let people just think they have the right to abuse private property without cause."

Sen. Dennis Stowell could not comment specifically on the suit because he had not read it. But he did say that going to court is a poor way to solve the problem because "it's expensive for everybody and you never know what will come out of it."

"It's much better if we can sit down and talk and find some common areas that we can work on," he said.

Stowell is co-chair, along with Brown, of the Utah Waterways Task Force, which he said is working to get more of the private areas of the streams open to anglers without violating the private property owner's rights.

Ted Wilson, the governor's senior adviser on the environment, said Herbert asked him to bring both sides together to avoid the courtroom. Wilson hopes the task force will be able to create a workable compromise on access.

"It's a little disappointing to me that the anglers have gone ahead [with a lawsuit]," he said.

Sen. Ben McAdams, also a member of the task force, said he was interested in reviewing the suit. He voted against the act, saying from a policy perspective he wasn't sure it accurately struck the proper balance between the rights of property owners and those of the public.

"It's something that the Legislature should look at and look to accommodate the public's right to access the streams," he said.

In September, Division of Wildlife Resources Director Jim Karpowitz told the task force a federal grant would help pay landowners for access to rivers and streams by anglers. But, he said, by 2013, the state would need to charge a fee to those wanting access.

The task force has scheduled its last public meeting for 11 a.m. Thursday at the Capitol.