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Utah Supreme Court upholds law making it more difficult to access waterways, much to the dismay of outdoor enthusiasts

The high court ruled the Public Waters Access Act — which restricts the public’s ability to access privately-owned steams — will remain as law.

(Francisco Kjolseth | The Salt Lake Tribune) Brady Willison on Tuesday fishes a stretch of the Upper Provo that cuts through the 7,000-acre Victory Ranch, a luxury destination near Francis. Until a Nov. 4 court ruling invalidating Utah’s restrictive stream access law, such streams were not available to anglers without property owners’ permission. Stream access advocates successfully sued Victory Ranch, claiming that the landowners’ practice of keeping non-guests off the river violates an easement the public has to stream beds. But without further guidance from the court, the scope of that easement is not clear, lawyers say. Victory Ranch insists the ruling should be stayed pending its appeal, which it expects to win.

  | May 24, 2023, 12:00 p.m.
| Updated: May 25, 2023, 4:24 p.m.

The Utah Supreme Court has ruled to uphold a law that limits access to some of Utah’s rivers and streams — a ruling that impacts anglers and those who enjoy floating many of Utah’s waterways.

On Thursday, the state’s high court released an opinion upholding the Public Waters Access Act, a law passed in 2010 that tightened rules to access waterways around the state. The ruling affirmed a 4th District judge’s 2021 ruling on the same case, which reversed a previous decision.

The 2010 legislation said the Utah Constitution’s private property protections, “protect against government’s broad recognition or grant of a public recreation easement to access or use public water on private property.”

Further, the Public Waters Access Act says, “public ownership of water and recognizing existing rights of use are insufficient to overcome the specific constitutional protections for private property.”

In other words, the bill differentiated between public ownership of water and owning the private land that makes up a waterway’s creek bed — meaning fishermen and anglers wouldn’t be able to wade through rivers if the area was private land unless they get written permission from the land owner.

Shortly after the bill was passed in 2010, a newly-formed group called the Utah Stream Access Coalition sued a real estate development company that was excluding people from areas of the Provo River it owned. In the lawsuit, which was the basis for the Thursday ruling, USAC argued the Public Waters Access Act was unconstitutional.

Herbert Ley, vice president and director of USAC, said that, despite the bill’s name, the Public Waters Access Act removes public access to many of the state’s waterways, siding with landowners Ley said want to take advantage of the state’s natural beauty for profit.

“There were many moments of peaks and valleys where we had been very encouraged by the results,” Ley told The Salt Lake Tribune. “And then, of course, ultimately discouraged by this recent ruling, which ends the case once and for all.”

Ley added the Public Waters Access Act effectively took away the public’s right to recreate along roughly 43% — or 2,700 miles — of Utah’s fishable waterways.

The Thursday ruling doesn’t change existing state law, but it effectively closed the door on the future loosening of rules surrounding accessing waterways.

As of now, state law allows people to float on the surface of water, even if the land below is private property, but stopping is prohibited. People looking to fish while floating can do so if they lawfully access the water. That access could be from “a highway right-of-way, public property or private property with written landowner permission,” according to the Utah Division of Wildlife Resources.

In a news release after the decision, USAC wrote, “Today’s decision ends only one of several avenues by which the Coalition aims to restore public access to Utah’s rivers and streams.”

USAC has prevailed in other stream access cases in the past. The nonprofit petitioned the Utah Supreme Court that parts of the Weber River, from Holiday Park to Echo Reservoir, were “navigable water,” which state law would protect as a public means of transportation.

“So that case basically asked the question, “was the Weber river used for commerce prior to Utah becoming a state?’” Ley said. “If so, the Weber River is a ‘navigable waterway.’”

In November 2017, the court found that section of the Weber River was a navigable waterway, which carved out special protections for recreational access along the river. Many of the larger rivers in Utah, including the Green, Colorado, Bear and parts of the Jordan, are all categorized as navigable waterways.

Ley said he believes there are other navigable waterways in the state, but they haven’t been designated as such. He said it should be on the state to protect and maintain Utah’s navigable waters, but there’s “a considerable resistance in Utah to recognizing that we have rivers that really should be open to public use, based on navigability.”

He added that USAC isn’t necessarily done with litigation and could file a different lawsuit if they believe it’s justified. Either way, Ley said the state, not his group, should be protecting its waterways.

“If it requires the Utah Stream Access Coalition to file another lawsuit on another river, so be it, but it really shouldn’t be our responsibility,” he said.