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Stream access ruling opens can of legal worms in Utah

Published November 27, 2015 10:16 pm

Controversy • Property owners want to go back to court, seeking a clarification and possible stay.
This is an archived article that was published on sltrib.com in 2015, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Earlier this month, 4th District Judge Derek Pullan ruled that the angling public has a right to walk steam beds through private property, overturning a controversial 2010 Utah law that minimized legal access to such waterways.

Now confusion reigns along some trout streams, argue lawyers who intend to return to Pullan's courtroom in search of a clarification and a stay.

Property owner Victory Ranch wants Pullan's Nov. 4 ruling put on hold pending its appeal, arguing that the decision has upset a century of established practice, will likely be overturned and has prompted the public to trespass as anglers flock to formerly off-limits segments of the Upper Provo winding through the Woodland Valley. The ranch straddles the braided-trout-infested stretch that was the subject of a bench trial last summer.



Meanwhile, the Utah Stream Access Coalition, the angler group that prevailed in the case, asked Pullman to amend the ruling to peg the physical scope of the public's easement to a river's "ordinary high-water mark."

According to new court filings and social media posts, tensions are playing out along the banks of the Provo where it traverses Victory Ranch, an exclusive fishing-and-golf destination near Francis. It covers 7,000 acres, most of which the property owners intend to conserve.

Managers say 30 anglers walked the property in the first five days after the ruling. Some were seen trespassing, managers say. Anglers access the property by walking up the river from the State Route 32 bridge. About a quarter-mile up, they encounter three signs attached to a single post, all discouraging them from continuing.

"No public access beyond this point. No Trespassing. Violators will be prosecuted," reads a yellow sign emblazoned with a fish.

In a Nov. 9 declaration filed with the court, Matt Eastman, the ranch's longtime director of outfitting, said anglers now leave the riverbed and trespass onto Victory Ranch trails above the high-water mark. Some would walk up the stream then exit overland across private property to the highway.

"Victory Ranch has not taken action to prohibit members of the public from utilizing the stream bed when it is accessed from a public access point," wrote Eastman, the Emmy-winning host of the Outdoor Channel program "Wanna Go Fishing?"

"Out of an abundance of caution, and in an effort to comply with [Pullan's] Final Order, we have instructed our staff to observe and document anglers who leave the stream bed and touch Victory Ranch property above the ordinary high-water mark."

Adam Barker, a Salt Lake City-based outdoor photographer, has a much different take on what the staff is doing. He walked up the river last week to fish and found that Eastman's guides were bent on ensuring it wasn't enjoyable. Pretending to be fellow anglers, some ranch staffers were stationing at fishable holes along the river, he said. Others trailed Barker on an ATV and cast lines directly ahead of him in a discourteous angling practice known as "high-holing."

Barker confronted Eastman, the one attired in Victory Ranch apparel and toting a camera. "He played stupid the whole time, noting that he was 'just fishing' and 'hopping around getting into fresh water,' " Barker wrote in a Facebook post.

Barker contends such behavior is counterproductive and will hurt the ranch's reputation.

"Why not work towards some sort sore of solution, instead of spending countless man hours in a futile attempt to make that stretch of (now public) water a veritable war zone for anglers that are simply fishing where the law has given them right to fish?" Barker wrote in a post addressed to Eastman. "We aren't doing anything wrong."

Meanwhile, the angler coalition won a companion suit in 3rd District Court in which a judge agreed the state owns the bed of the Weber River because it is a "navigable" waterway. Third District Judge Keith Kelly ruled that 19th century log drives during high water is evidence that this river was crucial to commerce at the time Utah became a state. That decision is under appeal, too.

With these two legal victories favoring angler access, Utah's rules for fishing on private property need to be completely revised. Everyone agrees an angler should never cross private land to access a stream without the owner's consent, but there is plenty for people to disagree on, such as how far from the water the public easement extends and under what circumstances it can be used.

In the interim, the Division of Wildlife Resources is urging anglers to exercise respect for owners whose property they are fishing.

Utah courts have yet to define what constitutes a stream bed in the context of the access question. DWR notes other states have defined it to include the area below the ordinary high-water mark — but this can sometimes be a long way from the water and is not always clear.

"The best indicator of the ordinary high-water mark is the vegetative line on the banks of a body of water where topsoil, grass, shrubs and trees occur in a manner consistent with an area that is not routinely flooded," DWR posted on its website. "Be advised that law enforcement agencies across the state may interpret beds more narrowly to include only that portion of the bed actually covered with water."

The agency advises against leaving the bed for any reason, including retrieving game animals or wandering pets and even untangling fishing line caught in shoreline shrubs.

Fences and other obstructions in the waterway pose another dilemma for anglers.

"If you choose to briefly leave the stream bed or riverbed to travel around an otherwise impassable object, you are doing so at your own risk," DWR wrote.

The agency is careful to note that the easement is only for "lawful recreational activities" that require the use of water, such as boating and fishing. In other words, don't go in if the channel is dry, and never go in on horseback or in a motorized vehicle. The easement does not extend to federal lands held in trust for American Indian tribes. There is no public right of access on these lands.

Victory Ranch's lawyers say Pullan's order should be stayed because of confusion over what it means and because they will prevail on appeal.

"Neither landowners, nor anglers nor law enforcement has any clear statement of what is and is not permitted. This ambiguity is potentially injurious to all involved — [Victory Ranch Associates], the public and the state — especially through law enforcement officers — and private property owners," they wrote in court filings.

The Utah Constitution guarantees the public's right to the state's waters for "any useful or beneficial purpose," but the lawyers argue it is was a stretch for Pullan to apply this logic to fishing.

"This is language of appropriation and irrigation, not recreation. No recreational right then existed [in 1895], nor was it intended to be embodied in the Constitution; rather any such issue was delegated to the Legislature," they wrote in a filing. And the Legislature spoke in 2010 when it passed the Public Waters Access Act, which Pullan invalidated because it accomplishes the opposite of what its title implies.

bmaffly@sltrib.com

Twitter: @brianmaffly

Brian Maffly covers public lands for The Salt Lake Tribune. He can be reached at bmaffly@sltrib.com or 801-257-8713.

 

 

 

 

 

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