Quantcast

Utah ruling advances access to public waters crossing private land

Published March 26, 2013 8:44 am

Restriction • Provo River case still faces lawsuit over the validity of controversial law.
This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

A 4th District judge has rejected much of the state's legal reasoning defending a 2010 law that restricts public access to rivers crossing private land, ruling that the public trust doctrine protects recreational use of public waters.

In other words, the state has a constitutional duty to manage such a resource for the public's benefit, Judge Derek Pullan ruled in a case that could have far-reaching significance and will likely be ultimately decided in the Utah Supreme Court.

"In Utah the public trust doctrine has been expanded to protect not only the 'traditional triad' of public trust rights — navigation, commerce, and fishing — but also the ecological integrity of public lands and public recreational uses," the judge wrote in his 24-page ruling released March 8. "As the people's representative body, the Legislature cannot have undivided loyalty to one stakeholder in public lands."

Pullan, however, declined to decide the landmark lawsuit in the Utah Stream Access Coalition's favor, saying the court must consider further evidence.

The suit seeks to have HB141 thrown out because, as the river access groups argue, this law effectively bars access to Provo River stretches even when boaters and anglers get on the river from public-access points.

"The Judge agrees that HB141 is problematic under the doctrine, but he is not certain about its true impact on the public trust resources," said Craig Coburn, who argued the case for the stream access advocates two months ago in Pullan's Heber City courtroom.

Public trust is a centuries-old legal concept that maintains certain natural amenities — like coastlines, lakes, rivers and their beds — remain public domain because of their importance to commerce.

Stream-access advocates contend Article XX of the Utah Constitution requires that the government maintain recreational access to the public resources it holds in trust. Rivers should be viewed as public easements across private property and the Legislature negated that easement.

Pullan's ruling endorsed that position, but the judge said he needs to hear evidence on the amount and quality of streams that are inaccessible due to HB141, which enables property owners to bar river users from touching the stream bottoms crossing their land. Deputies have cited anglers for trespassing under this statute.

So stream-access advocates aren't dancing in the end zone yet, but Coburn described the likelihood of victory this way: It's first and goal with just inches to go. But the state contends it has a powerful defensive line.

Assistant Attorney General Thom Roberts is confident the state could prevail when the court considers how many river miles in Utah remain open to the public.

"So much of the [Provo] river is unaffected by the bill because many stretches are publicly owned or for significant portions, from Jordanelle to Dear Creek [reservoirs], the rights have been purchased and agreements reached to secure access," Roberts said.

In court he had argued that under the controversial law, the state simply sought to regulate a public resource. Absent a "disposal" of this resource, there can be no public trust violation.

Pullan rejected that reasoning and addressed the state's duty to protect the natural resources in its care.

"Instilled almost at every turn with an arid and rugged beauty, Utah's public wilderness is truly the timeless gift of Providence," Pullan wrote. "Future generations cannot access legislative halls to defend their birthright. They silently trust the present generation to be a wise and responsible steward of the land and water."

bmaffly@sltrib.com