Before statehood, Utahns fished in streams across private land. Does that mean they can today?

Decision in Provo River case could impact 2,700 miles of fishable rivers, 42% of the total in Utah.

(Trent Nelson | The Salt Lake Tribune) A section of the Provo River near Victory Ranch in Woodland Valley in 2021. This stretch of this blue-ribbon trout stream is the subject of a case pending before the Utah Supreme Court, which is considering whether Utahns have a constitutional right to walk in streams across private land to fish and recreate.

For decades prior to Utah statehood, Latter-day Saint pioneers routinely walked, floated and fished in streams across private lands.

The practice was so common that there were no trespass laws on the books at the time and no one gave it a second thought, attorney Michelle Quist told the Utah Supreme Court Monday.

The high court is now weighing the pivotal question of whether 19th century Utahns’ unfettered access to streambeds established an “easement,” grounded in the Utah Constitution, across private land that persists to the present day.

The Utah Stream Access Coalition, represented by Quist, is seeking to overturn Utah’s restrictive stream access laws, rooting its case almost entirely in the understanding of Mormon pioneers that they could freely walk and float streams prior to 1896.

The case centers on a 23-mile stretch of the Provo River, where it winds through bucolic and mostly private Woodland Valley between the Uinta Mountains and Jordanelle Reservoir in Wasatch County.

“The river is ripe for recreation use, including canoes, kayaks and anglers who necessarily touch the bottom of the river bed incidental to recreational use,” Quist told the Supreme Court’s five members. “The Utah Constitution and courts recognize that Utahns own the public waters. But ownership of the waters without the ability to use them is worthless.”

The coalition asked the justices to reconsider a lower court’s decision that 19th century Utahns’ practices are not the basis of a legally enforceable easement today.

“Utahns have been using Utah’s public waterways as a public right — a property right — since they drove their wagon trains into this desert valley,” Quist and her colleagues wrote in the coalition’s brief. “Without permission, and without ownership, waterways were for public use, even when the land abutting those public waterways transferred to private ownership.”

While justices praised the depth of the coalition’s historical analysis, they posed tough questions about whether it fully answered key questions.

“By owning the water, do we mean owning the right to use the water, divert it, water crops, use if for culinary purposes? Isn’t that what we mean by that kind of water right?” asked Justice Diana Hagen. “Does the public’s belief that they have a legal right to something, is that enough to create an easement over private property?”

(Francisco Kjolseth | The Salt Lake Tribune) An angler, pictured in 2017, walks along a stretch of the Upper Provo that cuts through the 6,250-acre Victory Ranch, a luxury destination near Francis, which is the subject of lawsuit challenging Utah's restrictive stream access laws. The case is under review by the Utah Supreme Court, whose decision is expected to affect access to 2,700 miles of fishable streams.

The coalition aims to take down HB141, confusingly called the “Public Waters Access Act,” which actually restricts access.

Critics claim this 2010 law closed public access to 2,700 miles of fishable streams, or 42% of the state’s total. Such an outcome flies in the face of historic practice and would essentially privatize a cherished public resource for the benefit of wealthy property owners, the coalition argues.

On the other side of the case is Victory Ranch, a high-end golf and fishing community on 6,250 acres in Woodland Valley through which the Provo flows. For years, this blue-ribbon trout fishery has been ground zero in Utah’s access fight, as resort managers have tried to exclude non-guest anglers from the river.

Joined by the state in defending the landowners’ right to exclude recreationists, an attorney for Victory Ranch developer VR Acquisitions LLC argued public access needs to be based on an easement granted according to 19th century territorial laws, and noted no such grant exists.

What people believed 127 years ago is not enough to establish an easement, he said.

“A public understanding alone does not necessarily give rise to an enforceable legal entitlement,” Nathan Thomas said. “An easement doesn’t exist simply because someone believes I can do something or because of a permissive use. I can walk across my neighbor’s lot all day long. That alone doesn’t give a right to enforce that in court.”

For more than a decade, the stream-access battle has been on a dual-track roller coaster ride through various Utah courts.

The first track, the one heard Monday in the Supreme Court, focuses on the Provo, where USAC argues a public easement allows the recreating public to touch steam beds across private land.

The second track, focused on a stretch of the Weber River, explores whether beds of rivers used to float logs at the time of statehood are “sovereign” land to be managed in the public trust, including fishing access.

The coalition has scored a string of victories, but in the most recent ruling, 4th District Judge Derek Pullan delivered a setback in 2021 when he reversed a prior decision and concluded public easements to stream beds are not guaranteed by the Constitution.

Now the Supreme Court is again examining Pullan’s reasoning, in what may be the last judicial review of the coalition’s Provo case.

Quist repeatedly reminded justices that waterways are and always have been a shared resource whose communal use has enriched society as a whole by enabling commerce, recreation, even access to food. Some pioneers paid their church tithings in fish.

“Territorial Utahs created this community out of an understanding they all shared in common these resources,” Quist said. “They crossed thousands of miles to a desert nobody wanted. They made a beautiful desert rose and they did so because they shared resources.”

But Court of Appeals Judge Gregory Orme, sitting in for recused Justice John Pearce, pondered whether today’s recreational use of rivers is really comparable to how pioneers experienced it. He recast Quist’s historical explanation in a way that painted two very different pictures, past and present, of life on the Wasatch Back.

“Back in 1895 the people fishing the Provo River were not, as now, wealthy doctors from Southern California who fly into the Heber Valley Airport in their personal jets and fish for the afternoon and be home in time for dinner. It would have been your friends and neighbors, your fellow ward members, the person who helped you get your hay in last fall when you were laid up, the family whose wife helped your wife deliver children,” he said.

“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 continued. " There weren’t armies of tourists coming in and making use of that.”

While times have certainly changed, many Utahns still want to enjoy the state’s streams, regardless of whose land they cross. How the Supreme Court rules will finally settle how far they can step.