In wake of Supreme Court's Weber River decision, stream access advocates urge patience

Saturday , November 25, 2017 - 5:00 AM

BENJAMIN ZACK/Standard-Examiner

The Weber River flows through Fort Buenaventura Park on Wednesday, Nov. 11, 2015.

LEIA LARSEN, Standard-Examiner staff

A Utah Supreme Court decision this week only grants access to a 1-mile stretch of the Weber River flowing through private property.

But the ruling could have ripple effects on the entire river and beyond.

By successfully arguing historical log drives on the upper stretches of the river constituted trade and travel, attorneys for the Utah Stream Access Coalition showed the river was navigable at Utah statehood. That means the land below it is open to the public.

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The coalition’s attorneys limited their case to a 1-mile stretch for simplicity’s sake. 

“When you bring a case like this, we had limited resources so we couldn’t sue every landowner on the river,” said Bert Ley, director of the Utah Stream Access Coalition.

Instead, they selected a few properties where landowners were actively restricting anglers from wading in the river.

Collectively, those parcels add up to a 1-mile stretch of river, although they’re not along a continuous section of the waterbody.

The parcels are located near Browns Canyon Road in Summit County. They served as a representative sample of historical activities on the entire Upper Weber River, a stretch that runs about 40 miles. 

Story continues below map.

Historical documents showed settlers in the region regularly floated timber in the river to build railroads and mines. That meets the state and federal definition of “navigability” — that the water body was used for commerce and as a public highway for commerce. 

“Everything that happened from Holiday Park to Echo had to go through this 1-mile stretch,” said Cullen Battle, the coalition’s counsel on the case. “Whatever happened there happened on the whole stretch. That was critical, that’s why we chose this 1-mile stretch.”

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A river that was navigable when Utah became a state is open to public travel, even if that travel means sometimes touching the riverbed or portaging on private land to get around obstructions.

Walking across private land to access navigable rivers, however, is still trespassing without the property owner’s permission.

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While the Utah Supreme Court judgement immediately opens the riverbed within the four named parcels to public access, the state of Utah now must grapple with its implications. 

Because the Utah Supreme Court decided historical log drives prove navigability, the Utah Division of Forestry, Fire and State Lands could find itself evaluating all rivers where similar activities took place.

“We have a new paradigm,” Battle said. “We’ve got files we can turn over to state and show them (other) rivers were also being used in the same way at the same time by a lot of the same companies, actually.”

Those rivers include the Ogden, the Provo, the Logan, the Blacksmith Fork and the Little Bear, he said. The new paradigm might apply to the Lower Weber River, too, although the historical evidence isn’t as clear since timber would’ve largely been moved by rail at the time of statehood. 

Michael Johnson, attorney for Forestry, Fire and State Lands, acknowledged the ball is now in the state’s court.

“(The judgement) technically applies to the 1-mile stretch, but it definitely could have implications for the rest of the river in terms of being a precedent for similar portions of the river,” Johnson said. 

Division staff had not formally discussed the case as of Friday afternoon, since the ruling came after much of the office had cleared for the Thanksgiving holiday.

The Utah Stream Access Coalition also is awaiting a Supreme Court decision on a separate case on the Provo River that uses a different legal framework and could have wider-reaching implications.

While the Weber River ruling is a big win for the Utah Stream Access Coalition, its leadership is cautioning anglers not to wade along private land just yet. 

“We need to allow the state a bit of time to process this ... then it will be clear. Everyone can point to the state map that shows this is a navigable river and say, ‘I have a right to be here,’” Battle said. “We’re almost there; we need to wait a little longer. But the key thing has been accomplished.”

Contact Reporter Leia Larsen at 801-625-4289 or llarsen@standard.net. Follow her on Facebook.com/leiainthefield or on Twitter @LeiaLarsen.