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If a river runs through it, you ought to be able to cast a line, says the Utah Stream Access Coalition.
But a Utah law passed in 2010 effectively keeps boaters and anglers from public streams and rivers bordered by private property. Streambeds of such waterways are off limits under the law, even if people enter from public access points.
The nonprofit coalition, which earlier filed suit in Heber City's 4th District Court against a landowner along the Upper Provo River, has filed a motion asking Judge Derek P. Pullan for a summary judgment, declaring the law unconstitutional.
The law, known as the Public Waters Access Act, generated debate over private property rights versus public access even before it was passed.
In a memorandum supporting its motion, the coalition argues that waters flowing in Utah's rivers and streams "are and have always been owned by the public and, as such, are public waters."
The case names ATC Realty Sixteen Inc. as defendant. That California-based entity owns a real estate development in Wasatch County called Victory Ranch that is bisected by five miles of the Upper Provo River, directly upstream of the Jordanelle Reservoir.
According to court papers, employees of Victory Ranch have told anglers they were trespassing when standing in the river that is one of Utah's prime fisheries.
The filing also says that on July 5, 2010, coalition member Richard Dombek was cited for criminal trespass by a state Division of Parks and Recreation officer for wading up the Provo from a public access point at State Route 32 near Victory Ranch.
Eric P. Lee and Ryan M. Harris, Salt Lake City-based attorneys representing ATC Realty Sixteen Inc., did not return phone messages or emails.
The coalition's lawsuit cites the Utah Constitution and the "Public Trust Doctrine," as well as historic precedents, in making a case that the public has a right to use the beds of waterways, whether or not they are navigable.
Among other arguments, the coalition cites a 1937 decision by the Utah Supreme Court in the case of Adams v. Portage Irrigation, in which justices held that stockmen had a right to water from a spring on their land:
"While it is flowing naturally in the channel of the stream ... water must of necessity continue common by the law of nature and property common to everybody."
The coalition also reprised the 2008 Supreme Court case of Conatser v. Johnson:
"A unanimous court held that the public's easement to use its public waters allowed the public to engage in all recreational activities that utilize the water ..."
In passing the 2010 act, the Utah Legislature "ignored Utah's rich history regarding the public's pervasive use of Utah's natural waters and the Utah Supreme Court's repeated declarations that the public had a right to use its public waters," the court filing said.
But Assistant Attorney General Thomas D. Roberts said the Legislature does have the right, despite the coalition's argument, to regulate Utah's streams and rivers.
"One of the main disputes the state has with the claim is [the assertion] that the state can't change or alter access to public assets," he said. "The [coalition] argues the court can change it, and that's interesting. It's much more of a policy issue for the Legislature."
The law arose as a means to balance private property rights with public access, Roberts said. Property owners complained that anglers and boaters would come out of the river channel and trespass on their lands.
"People are walking along the edge of their property. Can they camp out? Can they cook food?" he said. "A number of legislators wanted to give some authority back to the property owners."
ATC Realty Sixteen Inc. and the Utah Attorney General's Office have until Sept. 30 to file responses.