public access Legal battles

Lawsuits against the state of Utah

IIn 2008, the Utah Supreme Court ruled in Conatser v. Johnson (2008), that since the public owns the waters flowing through Utah’s waterways (i.e., its rivers & streams) an easement exists that “provides the public the right to float, hunt, fish, and participate in all lawful activities that utilize the water,” and further, “that the public has the right to touch privately owned beds of state waters in ways incidental to all recreational rights provided for in the easement, so long as they do so reasonably and cause no unnecessary injury to the landowner.”  In 2010, the Utah Legislature effectively overturned this unanimous Supreme Court decision by enacting the perversely-named “Public Waters Access Act” (PWAA), which made it a crime to touch privately-owned streambeds without written permission from the owner of those beds, thereby effectively privatizing some 2,700 miles (or 43%) of Utah’s fishable waters.

The Utah Stream Access Coalition (USAC) was founded in July of 2010 in direct response to the enactment of the PWAA, and not long after its founding, brought two lawsuits against the State of Utah and private landowners who were demanding enforcement of the PWAA against the recreating public.  The two lawsuits challenged the PWAA and sought to affirm the public’s right to recreationally use the waters it owns on two different sets of legal grounds.  The first lawsuit, USAC v. (Victory Ranch) VR Acquisitions, filed on November 12, 2010, also known as the Provo River RIGHT-TO-USE CASE, challenged the constitutionality of the PWAA on a variety of grounds including what should be allowed on a segment of the Provo River under constitutionally-protected public trust principals.  The second, USAC v. Orange Street Development, filed on May 3, 2011, also known as the Weber River NAVIGABILITY CASE, sought to prove that a segment of the Weber River met the federal test for navigability based upon historical evidence of its use for commerce prior to Utah becoming a state, since even under the PWAA, the bed and banks of navigable waterways are open to public recreational use to the ordinary high water mark.

Both lawsuits highlight ongoing tensions between private property rights and the public’s right to use Utah’s publicly-owned waters while they flow through the natural waterways of the state.  You can learn more about each of these lawsuits below.