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Fishing Accessibility: Recent ruling in Utah
8/4/2008
Credit:
DAVE BUCHANAN The Daily Sentinel Grand Junction, CO http://www.gjsentinel.com/hp/content/sports/stories/2008/08/02/080308_OUT_column_WWW.html
Coloradans interested in increasing access to the state’s waterways would do well to watch closely a recent ruling by the Utah Supreme Court that allows public access on streams cutting through private property.

According to a story last week in the Salt Lake Tribune, the court’s unanimous ruling allows access to the beds of all Utah’s rivers and streams, no matter who owns the land beneath them.

“The high court said that without the ability to touch stream bottoms, members of the public cannot effectively enjoy their right to recreational activities on state waters, all of which are owned by the public,” reported staff writers Stephen Hunt and Brett Prettyman. A 1982 Utah Supreme Court ruling gave the public the right to use any water surface for recreation as long as access was gained legally.

The ruling tacks on a some restrictions, including water users must behave “reasonably,” “cause no unnecessary injury to the landowner,” and “engage only in lawful recreational activities.”

“It’s an exciting decision,” the story quoted attorney Robert H. Hughes, who successfully argued the case before the high court in April. “I’d call it a landmark decision in the body of law on public waters.”

With this ruling, Utah becomes the third state in the region to grant stream-bed access. In 1985, the Montana Legislature passed a stream-access law that has survived several legal challenges, including an appeal to the U.S. Supreme Court. As in the Montana law, the Utah ruling does not allow access across private land without permission.

Also, Idaho has a similar law allowing public access to the high-water mark.

Stream access in Colorado, like most Rocky Mountain states, is restricted to the water itself. The beds and banks belong to adjacent landowners and any contact with the stream bed or even fences strung across the water without permission is considered trespass.

This meant that during the drought, the subsequent low-water levels made many rivers almost unfloatable and put many people, whether intentional or not, in conflict with the law.

As Jonathan Weber, founder and editor-in-chief of NewWest.Net, an online publication about the Rocky Mountain West, wrote several years ago in an op-ed for the New York Times titled “A Class War Runs Through It,” there still is a strong bias toward private property owners in the West.

“When it comes to public access, state and local officials — and voters — need to recognize that the heavy bias toward property rights that exists throughout the West is something that will increasingly serve a small minority of wealthy landowners, not mom-and-pop homesteaders or family farmers,” Weber wrote. “This imbalance needs to change. County commissioners, who are often on the front lines, can’t allow themselves to be intimidated by the threat of litigation over access issues. And they need strong back-up from state attorneys general.”

It’s a confusing muddle. In recent years several attempts have been made at redoing the Colorado access law, even to the point of proposing a ballot initiative providing stream access.

The initiative fizzled, and the access question still hasn’t been answered.