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Utah judge says streams are public assets, but access still a question

Published May 30, 2012 10:23 am

Anglers and state see room for hope in partial ruling.
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A Utah judge agreed Monday with anglers arguing that all rivers and streams are public waters, but he has yet to decide whether a law restricting access to them went too far.

Fourth District Judge Derek Pullan ruled that the Utah Constitution makes clear the waters that HB141 two years ago restricted from public access are owned by the state and must be managed in the public trust. He did not rule whether that public trust requires public access on streams crossing private lands, such as wading that anglers once enjoyed.

Instead, he asked attorneys for the Utah Stream Access Coalition, the landowners and the state to brief him for a final ruling this summer. Whichever way the judge goes, the contentious issue is sure to be appealed to the Utah Supreme Court.

Both sides saw hope in Pullan's 43-page ruling.

"We believe it was very favorable to us," said Craig Coburn, attorney for the Stream Access Coalition, which seeks a return to the standard of open in-stream access established by Utah's high court before HB141's restrictions. He noted that the judge ruled not only that the state owns the waters, but also that the public is entitled to an easement for purposes including recreation.

"He just did not push the ball across the goal line," Coburn said, "because he didn't think he had enough information."

Assistant Attorney General Thom Roberts said the ruling clearly affirmed the Legislature's authority to regulate the public easement. He pointed to sections in which the judge noted that HB141 did not transfer any of the state's property rights.

"The court did say that the Legislature has the authority to regulate the use," he said, "and [HB141] is regulation of use."

The question to be determined is whether the state's regulation — what the access coalition contends effectively eliminates the public easement rather than just regulating it — violates the public-trust doctrine in state law. The sides will now submit briefs arguing how much leeway state law offers the Legislature in restricting public access to public waters.





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