Landmark Decision for Stream Access/Use in UT

[Wild One]

Wasn't sure where to put this, so I guess this is the catch all forum.

Last week the Utah Supreme Court ruled that all public waters that may flow through sections of private land, are now open (including the stream bed) to law abiding recreational users!

This is a HUGE decision for anyone who plans on fishing a stream or river in Utah in the future. Previously, the law stated that private land owners reserved rights to the stream bed underneath the water and while recreational users could float on the water, they could not touch the stream bed.

Due to a recent appeal from district court on a criminal trespassing charge (in Morgan County, UT on the Weber River) to the Supreme Court of Utah we can now fish miles and miles of previously closed water.

Personally, I could not be happier. Luckily I never experienced the wrath of any land owners, but only because I heard so many really bad experiences from other anglers and was too scared to push my luck. One stream in particular that I fished on a very regular basis was so difficult to fish because there were sections of the river that were public which were surrounded by private land. Anglers could get in and fish up to a certain point, but would then have to back track, get out and walk along the road to the next public access spot. There were also many land owners who would purposely dam up a stream to keep fish from moving freely throughout the water system.

My hope, however, is that users don't abuse this privelige. While we can now access water that we previously could not, it does not mean that we now have a right to destroy and trash private (or public) land. If I was still living and fishing in Utah I would print this out and carry with me, just in case.
http://www.utcourts.gov/opinions/sup...tser071808.pdf

This might be one of the biggest recreational laws passed in the history of the state.

[Big Bad Wulff]

Now if they will just re-open all the trails closed to users by Clinton/Gore all recreationists can be happy!

[Wild One]

Now if they will just re-open all the trails closed to users by Clinton/Gore all recreationists can be happy!

Heh, heh....that'll be the day!

[JohnScott]

Very interesting decision. May leave a couple issues unresolved, but definitely a step ahead for wade fishermen and others lawfully utilizing the waters of the State of Utah.

Someone in Wyoming might want to take a good look at this decision and see if the controlling Wyoming decision might subject to challenge based on this Utah case.

[Bamboozle]

What's next, opening ALL land to hunters, hikers & bikers as long as they behave too? How about farm ponds or private lakes & reservoirs with inlets and outlets?

Sorry but I think private property should be remain private if the owner so chooses regardless of who wants to use what. It sets a very bad president IMHO regardless of what 250 year old no-longer-applicable laws apply. Let's face it folks, navigability is a self serving excuse to pi$$ off somebody who doesn't want to let you on their property. It isn't the Mississippi we are talking about here; it's some piddly little crick or shallow river that hasn't been used for commerce since Wild Bill Hickok was in knickers and will never ever be used for commerce again so why those laws even apply any longer is beyond me. If you want to preserve rights of way for commerce than wrap your arms around preserving old railroad beds. In most cases those revert to the original deed holders upon abandonment; a much more sensible approach.

Here in PA a landowner can close a stream if they own the land and the waterway wasn't declared navigable two zillion years ago (despite the fact I've NEVER seen a coal barge plying any local navigable waterways I fish). When I see what the slobs leave behind; the insanity of raft flotillas or how inconsiderate arrogant yahoos fishing in someone's back yard can spoil someone desired serenity, it raises the hackle on my neck.

I have quite a few friends who are farmers. I've seen with my own eyes or have been told of cut and damaged fencing, gates left open in pastures, crops trampled, animal harassed or let loose where they can get in harms way, piles of trash, loud late night fishing forays and long rod wielding morons arguing with farmers over how they should manage their runoff. It's no wonder so many of my old fishing spots are now posted. Jerks abound out there these days and despite the lofty opinion held by many that fly fisherman are above the fray; I've meet too many double taper jerks to convince me anyone is excused.

Private property rights should trump the intentions of Johnny Fly Guy IMHO and if you think access will stop with fisherman and rafters you are sorely mistaken. Doesn't anybody else out there not blinded by the glare of a $400 fly reel find the prospect of government being able to declare anything they want as public property a wee bit unsettling? Isn't it bad enough the government can seize your property to build a shopping mall? Maybe I should push to be able to camp in someone's backyard because the land should be held in trust for the public too!

I personally will do whatever it takes to support my fellow PA landowners and their present rights to legally close their property if the same stupidity ever takes hold here in PA. There is plenty of water out there, just go fish someplace else.

The right way to insure access is to support programs that enable the government to acquire or lease private property instead of just declaring a free for all in the meadow because some whiners can't fish or float where they want to. But unfortunately some of those acquisition options require folks to pony up some cash or raise some dough and may fisher-folk feel that their license fees and taxes should guarantee them access to everything everywhere.

Sorry for the rant but color me SOLIDLY AGAINST the issue of allowing undesired access on private property. I'll give up fishing before I'll give up my rights to do what I want with my land.

Fire away...

[JohnScott]

Bam -

It's called "State's Rights."

Utah decided a long time ago that state waters would be available to be utilized for recreation, including the streambed, in lawful ways where no injury would be done to the adjoining property / streambed owner. Navagability is not necessarily an issue under Utah law, according to this decision.

Idaho has more liberal law. All navagable water is open to the normal high water mark, including the streambed. Navagable is generally defined as water that will float a log, something like six feet long and a foot in diameter, as I recall. Given the importance of the timber industry here, that made sense, and the law and the tradition stand.

Wyoming is one of the State's whose Rights are still different. You can float but not wade, because WY law has to do with a "right of floatation" not a right to "utilize" the waters of the state, as in Utah.

Two points -

First, if you don't like the "Law of the Land" you can choose to live in another State whose "Rights" you prefer.

Second, I completely agree with you about the problems a lot of landowners face with some intrusive, discourteous, abusive members of the public. A couple of my farmer friends have similar problems with people crossing their land, with or without permission, to get to the public waters.

But that doesn't strike me so much as what the law is in a particular place. It's more a matter of courtesy and responsibility at the personal level.

It hasn't come up in Idaho or any of the other Western States, as far as I know, that private property rights are going by the boards, as you seem to think might happen in your neck of the woods. Hope it doesn't really happen there, or we will have the rant of all RANTS, right ??!! ( I'll even join in on your side of that rant. )

John

[Wild One]

What is sad (and true) about what you describe bam as farmers who have their private property destoryed or otherwise tampered with is ALREADY HAPPENING. I for one would think that at least some of those folks who are climbing and breaking fences, destroying crops, etc would be able to avoid climbing those fences causing that damage if it is now legal to continue wading up the streambed which the farmer isn't using anyway.

The bottom line argument in my eyes to the destruction of property you describe, is that it is going to happen whether it is legal or not. By opening up stream beds which were previously unaccessible to recreationalists, there will not (IMO) be any further damage done to private property than what is already being done.

While I would still respect the land owners rights and property, I do understand that not everyone else will. But even if it is not legal, the folks who are destroying that property are going to do it anyway.

[gzacckey]

You can bet there will be more case law to come on this one. Most of us can see both sides and we all wonder where the line will be drawn between the good of the public and the rights of individual property owners.

On one side you have the public’s interest where the state is considered to own resources that go through private property. On the other side we all want control over the property we own and care for. Who wants to improve their property then standby and watch the public damage the property. Of course that happens all the time.

For instance utility easements, sidewalk easements and even condemnation of property are frequently implemented for the good of the general public. In the case of sidewalks and utility easements the owner is responsible for maintaining the property and allowing access whether they like it or not. In Utah it sounds like streams including the streambed will be treated like sidewalks. Ever have a dog crap on your curb or someone leave trash on your lawn or even have someone damage your shrubbery. I just had my lawn and driveway dug up by the local cable company. I argued but they have the right of access and they did a lousy repair job. In mine and another local township property were condemned for use as golf courses. It was deemed important to the local population & economy and lawfully obtained. So forcing limitations on property ownership is nothing new it just continues to evolve as resources become scarcer. What happens if property owners increase their use of streams to provide power to their homes and vehicles? Hydro power is the cheapest of all but it can warm the water and divert flows.

So my question is why should streams be treated differently then something like sidewalks where the property owner must allow limited access without obstruction and accept the fact that a certain amount of wear and tear will occur?

[pharper]

I see this as a good step.

I have property on a couple of rivers in Alberta that have good trout populations. We have people litter and break and generally abuse what they consider a right. I hate it. I'm also selfish and want those water to myself (although I'll share and freely give info to people I think as deserving). It's my river.

On the other hand, I work for the gov't (Canadian), and more relevent I work with protecting public fisheries. Gov't ownership of rivers to the normal highwater mark has protected many, many, fisheries from being destroyed. I don't believe landowners should have the right to do what they want to the water, especially where it can affect downstream or previous users. Anything that can affect a public resource or right, should be governed by the gov't (or at least a governing body).

Hopefully, as angler access increases (and idealistically not pressure), people will begin to report trouble makers and the anglers themselves will take it upon them to start cleaning up the garbage. I carry a garbage bag when I fish, for that reason.

[Bamboozle]

Wild One:

Part of the problem with farms & ranches is you can't avoid fences. As long as you need fences to keep livestock in; somebody with permission will have to open a gate and REMEMBER to close it behind them to enter a pasture and SHOULD leave the same way. But of course there will always be lazy people who won't feel like walking 100 yards or a mile or more to a gate and will climb or cut a fence, or cut through a field of crops to get where they want to fish. Maybe the Utah lawmaker's will force them to put in a few extra gates to make it convenient for the fisherman.

One creek I fish has an electric fence right across it. It is a property I have permission to fish yet the obstacle remains because it is needed to direct the cows to an adjacent pasture on the other side of the creek and to keep them from downstream areas which are not the farmer's property.

The bottom line here is if I was less conscientious or lazy I would possibly consider cutting or climbing the fence rather than walking the mile to get around it and downstream. Of course knowing it's electric is a deterrent too! But I also figure that I am the only guy the farmer lets fish there because somehow I know if more people had access, that fence would be trashed because walking around it is a real PIA.

I guess I just have no faith that good behavior will prevail when there are so many lazy people out there.

Maybe when all of the shopping carts at the market are placed back in the cart corrals instead of two feet away against a curb; maybe when all of the empty beer cans & water bottles end up in the trash not in the bushes; maybe when I no longer see the empty worm containers and hook packages lying on the stream banks; maybe when the discarded tippet spools and strike indicators end up in the angler's pocket for the trip home instead of being "accidentally" left on the bank or dropped in the water; maybe when I hear thank you being said as many times as I say it to show my appreciation...

...maybe then I'll be a believer too.

But until that day; I know there will continue to be destruction of property whether it's legal access or not because some folks just don't care and I will continue to consider it wrong to force a private landowner to endure it just because it's the law.

Access to private property shouldn't be considered an entitlement just because you are a "public"; it's a privilege that should be earned by asking and showing respect for something that doesn't belong to you.

I'm glad I live and fish in a state that still understands that.

BTW - Sears is having a sale on wire cutters!

Good fishin' fellas!