Monday , June 26, 2017 - 12:00 AM4 comments
Editor’s note: This story was updated to correct confusion in wording about public and private properties.
This is the first of a two-story series on the fate of public access to the Weber River. This story explains the background and legal status of the issue. Part two explores the perspectives of landowners and boaters who use the river.
On a late spring day in June 2000, Keven Conatser and his wife loaded a rubber raft and floated down the Weber River through Morgan County. He occasionally got out of the boat to wade along the river bottom and stop on sandbars to fish.
He took special care not to get out on the banks where the river flowed past private property, but occasionally Conatser cut wire fences running across the river blocking his way. An owner of some farmland saw Conatser standing in a river section on his property.
The farmer told Conatser to leave. Conatser refused.
“I told him to kiss my ass, that he didn’t own the Weber River,” Conatser remembers.
In doing so, he launched one of the biggest river access controversies in Northern Utah and it’s still causing a clash today.
The debate falls at the intersection between a private landowner’s property rights and the rights of the public to access Utah’s waters. No one disputes that the water flowing down the river belongs to the people. But what about the land fixed beneath it?
After two decades of wrangling with the issue, it’s now in the hands of the Utah Supreme Court. The Utah Stream Access Coalition is trying to settle the issue with two separate cases — one for the Weber River and one for the Provo River.
Each makes a different legal argument, but the end game will decide the same thing: whether the beds of Utah’s major rivers can be used by the public, private property or not.
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When Conatser exited the Weber River after his day of fishing back in 2000, the Morgan County deputy sheriff was there waiting. He wrote Conatser a ticket for criminal trespass, but Conatser fought back.
“That’s our river. That’s my backyard. My dad was born in Devil’s Slide and my grandma was from Morgan,” Conatser said. “I don’t think they (private property holders) own that big of a river.”
The case was ultimately appealed up to the Utah Supreme Court, which ruled in Conatser’s favor in 2008.
Utah statute at the time recognized public ownership of state waters and an “easement over the water regardless of who owns the water bed beneath.” State statute also recognized a public interest in using waters for recreation.
No one argues the public should be able to access state rivers, lakes or streams by walking through a private property. Likewise, landowners also agree that the water flowing through their property belongs to the public.
And just because a public river flows through a private property, members of the public don’t have any right to get out of the water and walk around on — or vandalize — private land.
What the Supreme Court determined with Conatser’s case, however, was that the public could touch the land below the river as “reasonably necessary” to enjoy recreating on public waters.
In other words, Conatser was within his rights standing on sandbars and wading through the water to fish. The property owner could not prohibit lawful use of the water.
The ruling raised the ire of private landowners with riverfront property throughout the state. They lobbied state lawmakers.
In 2010, HB 141 changed state statute and limited recreational access of public waters to floating. The goal was to protect the rights of private property holders.
But touching private land beneath the river suddenly meant a boater, tuber or angler became a trespasser.
“(It) in effect put landowners in charge as to whether or not the public could access and use 2,700 miles of fishable water,” said Craig Coburn, an attorney for the Utah Stream Access Coalition. “That 2,700 miles amounted to 42 percent of all fishable water in Utah in terms of rivers and streams.”
The Utah Stream Access Coalition moved to fight that decision in two ways.
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STRATEGY ONE: WEBER RIVER
On the Weber River, they’re using an old federal law that deems streambeds state-owned lands and managed for the public benefit if the rivers were “navigable” before statehood. That’s why the State of Utah has sovereignty over the beds of the Great Salt Lake and Utah Lake, for example, and manages them for the public trust.
Since federal laws trump state statutes, a favorable ruling in the Weber case would make HB 141 moot. It would mean private landowners don’t actually own the riverbed.
To be successful, the coalition has to prove to the Utah Supreme Court that the Weber River was used as a “highway” and for “commerce” at the time of Utah’s statehood.
Cullen Battle, the coalition’s lead attorney on the Weber case, heard anecdotal stories about log drives on the river when Mormon pioneers were settling Summit, Morgan and Weber counties.
“The problem is, we were looking for a needle in a haystack. It was hard to pin down the time period we were looking for,” he said.
They turned to Sara Dant, history professor at Weber State University. With a team of volunteers, she amassed diaries, newspaper articles and old advertisements that showed early settlers indeed used the Weber and Ogden rivers to move logs from forests to mills. They mostly used the timber to build railroads before and after Utah became a state.
“The challenge with the Weber case is ‘navigability’ is best proved by boat traffic,” Dant said. “And there’s not boat traffic.”
The coalition and advocates of public stream access are instead arguing a log drive meets the vague definitions of the law, since it demonstrates travel (at least for the logs) and trade on the river during natural flows.
“Is that use of a river (considered) a highway of commerce, or are you somehow disqualified from establishing navigability because you don’t have boats with people in them?” Battle said. “That’s the legal issue the Supreme Court’s going to decide.”
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STRATEGY TWO: PROVO RIVER
For the Provo River case, the coalition is arguing that HB 141 violates the state constitution. Specifically, they argue it violates Article 20, which reads:
“All lands of the State that have been, or may hereafter be granted to the State by Congress, and all lands acquired by gift, grant or devise, from any person or corporation, or that may otherwise be acquired, are hereby accepted, and ... are declared to be the public lands of the State; and shall be held in trust for the people.”
Rather than create laws about public waters for the benefit of private landowners, the coalition argues, the state has a mandate to manage them in trust for the public’s benefit.
But if rivers are a a public easement, does that make riverbeds “public lands?” Are they like a sidewalk running through a residential property?
The Utah Supreme Court held hearings on the cases in January of this year, and the coalition felt confident they’d make a decision by the spring. But after Judge Douglas B. Thomas recused himself, the court re-heard arguments for the Provo case last week.
“They asked a whole bunch of really fundamental and important questions regarding where these rights come from, historically,” said Bert Ley, vice president and director of the Utah Access Coalition. “The questions are really getting to heart of the matter.”
Ley said he expects a decision on both cases to be issued in the fall, although it’s tough to know the court’s timeline.
“It’s been seven years in the making to get to this point,” he said. “We can only hope they add more clarity (to the issue). If they do, that will help us in driving our path forward.”
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