Landowners are blocking public access to a renowned Utah fishery. Is that legal?

Wasatch County • The renowned Lower Provo River is one of just a few top-rated Blue Ribbon fisheries in Utah. Carving between steep limestone cliffs and situated about an hour from what is now bustling Salt Lake City, it’s long been a near-perfect place to fish for brown and rainbow trout.

Until it wasn’t. Not because the river dried up, or because all the trout got caught. Instead, property lines, a “legal gray area” and an apparent lack of enforcement by state agencies — which property owners, advocates and anglers alike argue could be doing more to clear up confusion — got in the way.

Despite allowing (or at least tolerating) fishing access for decades, landowners more recently have taken issue with anglers trespassing on their property in order to stand in the river to cast. Their ire aligns with the 2010 passage of the state Recreational Use of Public Water on Private Property bill, which allows people to float on rivers but forbids them from setting foot on riverbeds. A Utah Supreme Court case decision last year also reinforced the law.

But others don’t see it as plainly, especially after the Utah Stream Access Coalition in 2017 won a legal battle for public rights to parts of the Weber River. The coalition believes this part of the Provo River — like that stretch of Weber — is “navigable,” and, according to the Utah Water Rights Act, that also means public.

Whether or not a river is considered “navigable” is a key distinction, because the act says the public may recreationally use private stream beds if the water winding through them is “navigable.” By the state’s definition, “navigable” means a waterway is large enough to be used to transport goods and people and has been used for commerce.

The coalition sent a letter in July 2023 to the Utah divisions of Forestry, Fire and State Lands and Wildlife Resources arguing the Lower Provo’s navigability and asking for clarity, but so far, nothing has changed, said Herbert Ley, the coalition’s director.

“The reason we decided to get to this point of issuing our own position statement is because we asked the state to do it … and they did nothing,” Ley said, “And so we just said, ‘Forget it. Let’s raise the ante. Let’s tell the public what our position is. Let’s assert that the Provo River is navigable.’”

That declaration was published in the coalition’s April newsletter, nine months after the letter was sent to state officials. The newsletter also called on supporters to report trespassing conflicts so that the coalition may take up another legal battle and force the navigability issue.

State legislators last year also upped the ante: passing a law last year that would punish anglers who access rivers and stream beds that run through private land with a class B misdemeanor trespassing charge, which carries up to six months in jail and up to a $1,000 fine.

That is, if law enforcement chooses to enforce the law — and multiple sources told The Salt Lake Tribune that authorities haven’t been on the Lower Provo.

‘A bunch of negative energy’

The lack of enforcement along the Lower Provo seems to stem from the Wasatch County attorney’s office, which prosecutes cases in the area.

In a statement, the office said trespassing enforcement along the river is complicated, because county prosecutors feel the courts haven’t decided whether anglers accessing the land is technically considered trespassing. The office pointed to ongoing federal litigation over who decides access to certain areas of the river, including a contested “fisherman’s easement” on one side of the waterway and railroad easement on the other.

The county attorney’s office still evaluates cases on their own merits, the statement noted, adding that if prosecutors find sufficient evidence, they would charge trespassers.

“Wasatch County takes its responsibility to uphold the law very seriously. However,” the office said, “we also take our ethical responsibility to not prosecute persons who may not be violating the law very seriously.”

In the meantime, this state of limbo from several sides has marred the Lower Provo’s extremely fishable waters in dysfunction and left everyone involved frustrated, said Layne Edwards, who owns Park City Fly Fishing Guides.

He hasn’t had any guides take clients up this stretch of river in more than a year, he said, ever since property owners started putting up “no trespassing” signs and conflicts between anglers and property owners — or anglers competing with other anglers for the remaining spots — began bubbling up.

“We have folks that are paying us to take them on a guided trip, and we have a responsibility to provide them with a positive experience,” Edwards said, “and the last thing that I would want our guests to experience would be a bunch of negative energy.”

Steve Ault, who owns just under 3,000 acres along a stretch of the river, is so fed up with the lack of law trespassing enforcement that he’s trying to shift the county line such that his property resides in Utah County — not Wasatch — with hopes that Utah County Sheriff’s Office deputies will do something.

All this, six years after the state Division of Forestry, Fire and State Lands hired a river analyst — whose job it would be to settle such disputes — yet so far hasn’t made any such determinations.

In a statement, Ben Stireman, the division’s deputy director of minerals and lands, said the river analyst initially hired has since left and wasn’t replaced “due to a lack of legal authority for FFSL to adjudicate navigability issues.”

“Currently, the Division’s director and deputy director are actively involved in all issues involving the public trust, and have several attorneys working on complex navigability and public trust issues,” the statement continued.”

It noted that the division planned to enter a quiet title action involving the Lower Provo on Thursday, but didn’t provide more details.

An argument for navigability

The path to proving the Lower Provo’s navigability became clearer as the Utah Stream Access Coalition made a similar argument for a stretch of the Weber River, between Holiday Park and Echo Reservoir.

That’s because, during that litigation, the coalition happened to find more evidence to support the Lower Provo’s navigability.

But by that time, they were already years into a legal battle over the Upper Provo, a stretch that flows from the Uinta Mountains into the Jordanelle Reservoir. That case was rooted in the argument that Latter-day Saint pioneers routinely used the waterway prestatehood, and that use — which was integral to their survival — created an “easement” for public access today. The Utah Supreme Court shot down their argument last May.

Still, the coalition feels the logic that helped win Weber River access could help reopen the Lower Provo. To argue their point, Ley said, they shared the navigability evidence they found with the state river analyst in 2018 — mostly newspaper archives, some of which they also shared with The Tribune.

For instance, a short piece published in a December 1881 edition of the Territorial Examiner applauded a Mr. Dan Jones for “cutting [railroad] ties in Provo canyon and floating them down the river, a distance of thirty miles … despite the unfavorable prediction of many.” The article stated that Jones planned to “get out several thousand more ties by the same source before winter is through.”

An August 1888 edition of the Daily Enquirer also reported that 150,000 ties had recently come down the river, and that more men were working in the canyon cutting ties “than there has ever been in the history of Provo.”

But with no input from a river analyst, and with no action from the state, the coalition expressed frustration about the “legal gray area” in its April newsletter.

“If it is designated or adjudicated as navigable, there would be no question that you are permitted to recreate on the beds and banks of the river so long as you enter it from a lawful access point. But,” the newsletter read, “it hasn’t been deemed navigable and none of the relevant state agencies appear to be interested in settling this uncertainty.”

Faith Jolley, a spokesperson with the wildlife resources division, said property boundaries in the area, especially right below the Deer Creek Reservoir, are “difficult to verify.”

She mentioned the lawsuit the division is involved in over confirming a fishing easement in the Lower Provo River, but declined to comment further on the ongoing litigation.

“Public access for fishing is important, and we are doing our best to provide public access for anglers via our angler easement,” she said.

But that strategy wouldn’t open up the Lower Provo as much as the stream coalition contends it should, Ley argued. There have been no filings in the case since December.

No one’s happy

Ault doesn’t buy the stream coalition’s navigability argument. He said without the two dams above his portion of land — at Deer Creek and Jordanelle reservoirs, completed in 1941 and 1993, respectively — the river wouldn’t be high enough to float more than a “rubber ducky,” let alone goods for commerce.

Ault, brother-in-law to former Utah Gov. Gary Herbert, said he doesn’t necessarily mind people fishing on his land. He just wants to talk to them, and charge them an access fee.

He said the issue is more about principles — specifically, the sanctity of private property rights, and what he sees as an encroachment of socialist ideas. (He sometimes refers to the Utah Stream Access Coalition as the Utah Socialist Access Coalition.)

“We can own property here, and we can have businesses, and we can do things that they can’t in other parts of the world, and yet,” he continued, “there’s groups and individuals that would take that away.”

The 70-year-old, a cyclist who has completed the 100-mile Leadville mountain bike race five times, cited those same principles when he argued against a planned multi-use Provo River Parkway trail meant to run from the mouth of Provo Canyon to Deer Creek Reservoir, connecting trail networks in the Utah and Heber valleys.

From behind the wheel of an off-road vehicle, Ault gestured to an open river bend, where “spectacular pines and quaking aspen and just big, big old trees” once grew, providing shade and shelter to cougars, bears and other wildlife looking for drink.

But now the bend is relatively naked, after a Utah Department of Transportation contractor razed hundreds of trees last year to make room for the path that still hasn’t been built.

Instead, right outside his Provo River Resort property, in a narrow section of the canyon, there are signs warning that the path is about to end, with a 3.5 mile-gap between trails that won’t be filled unless the court rules in UDOT’s favor over the railroad easement litigation.

Fighting the trail was his first battle, he said. Now, he’s enmeshed in several — including the controversy over public river access.

Ault has posted “no trespassing” signs around his property, and just about every week, he said a security guard he hired finds them trashed — pulled from the ground, bent and needing replacement. The guard also routinely finds trash left behind by, they assume, anglers.

“If you take [the stream access coalition’s view], and apply this to any other private property owner, you wouldn’t want people in your backyard and have a right to be there,” Ault said. “You would never allow someone to walk through your yard to get to a gate that goes to a park, right? But that’s a very similar situation here.”

It’s a similar argument to the one Utah Appeals Judge Gregory Orme made in the Upper Provo case.

“I don’t think it would have occurred to the pioneers to run someone out of their river bed that was their friend and neighbor,” Orme asserted. “There weren’t armies of tourists coming in and making use of that.”

Ault contended that some do pay him for access, but then problems sometimes arise between those who paid and those who didn’t, leaving no one happy.

Edwards, who owns the fly fishing guide service, said it’s easier to just avoid the Lower Provo altogether — until, or if, the issue is settled. But the pause portends a depressing future for businesses like his and anglers who want to fish some of the best waters Utah has to offer.

And there’s plenty of demand to fish the Provo — people come from around the world to do it.

Currently, Edwards and other guide services only take anglers to the river’s middle section, between Jordanelle and Deer Creek, and it’s getting crowded. He worries about overfishing and the longevity of a business where he may need to start building relationships with landowners in exchange for access — with no guarantee that landowners may not one day change their mind.

Then there’s the law enforcement issue: What happens if Edwards enters into an access agreement with Ault, takes a group of anglers onto Ault’s property, then runs into someone else on the water without permission to be there?

“Everybody, again now, is mystified as to what is supposed to happen, and we ended up in this limbo where no one wins,” Edwards said.

Ault, Edwards and Ley all pointed to other western states they say got this issue right — Colorado, Montana and Idaho, respectively. They hoped that Utah would emulate them.

But the situation remains in flux, and in the meantime, it seems anglers will continue taking risks for the chance to fish one of Utah’s crown jewels.

Just after 4 p.m. on a recent Tuesday, minutes after Ault finished showing The Tribune around his property, a man parked his truck outside Ault’s locked metal gate, readying his fishing gear. The Tribune approached him, but he pointed to the AirPods in his ears. He couldn’t chat now, he signaled — he was on a Zoom meeting.

Then he turned, rod in hand, and walked past Ault’s closed gate down toward the river.

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