The following article appeared in the Salt Lake Tribune on 04/05/08.
**Utah high court weighs river rights **
*Rafting is OK, but can a Roy couple stand on the streambed while fishing? *
By law, Utahns own state waters and have the right to float down rivers.
But the waters get a little muddy on the issue of whether these rafters, as well as anglers, can walk on the streambed underlying a river as it flows on private land.
A lawyer for a Roy couple who float and fish in the Weber River contends that an easement allowing the use of public waters for recreation includes the right to stand on the riverbed while fishing.
“The water is there for all lawful purposes,” Robert H. Hughes told the Utah Supreme Court on Thursday, adding that wading in the river to fish is one of them.
But Ronald Russell, an attorney for landowners along the river, said that argument is all wet. He pointed out that his clients own the ground underneath the river and argued that they can restrict others from walking on their property.
“The easement is to be upon the water, not to be upon the bed,” Russell said.
The arguments centered on an issue of major interest in a state where water is scarce and outdoor recreation is popular: whether public ownership of rivers includes the right to walk on the bed while engaging in an activity such as fishing.
Kevin and Jodi Conatser say it does.
“I’m here to stand up for people who like to raft, to fish and to float,” Kevin said Thursday outside court. “No one owns the Weber River but the people.”
The Conatsers, who operate a beauty salon in Roy, say they put a rubber raft in the Weber River on June 4, 2000, at a public access point and started to float down to another public access point.
As they made the trip, their raft skidded along the streambed in shallow areas and their paddles touched the bottom occasionally, according to their court brief. In addition, Kevin’s fishing tackle came in contact with the bottom and he walked along the streambed to fish.
The husband and wife say they were confronted by property owners who ordered them off the river, but they refused and continued downstream on their raft to their exit point. They were met by a Morgan County sheriff’s deputy, who cited them for criminal trespass.
The Conatsers, who were found guilty in a county justice court, later filed suit against the deputy and a number of landowners. They asked 2nd District Judge Michael Lyon to rule that they have the right to be on the riverbed.
But Lyon said touching the bed on private property is permissible only to assist floating, such as freeing a raft that is struck. The Conatsers appealed, leading to the Supreme Court arguments.
Outside court, Russell said landowners are just trying to protect their property. Outsiders who have gone onto the streambeds and even the land above the watermark have damaged fences, barns and irrigation structures, he said.
“It’s a problem of drawing the line,” Russell said. “If you can walk on the streambed, that would give you the right to walk anywhere there is a trickle of water.”
The justices took the case under consideration.
It’s really sad that Utah isn’t like Nevada on this issue. In Nevada everything three feet below the normal high water line is public domain. My brothers & I tested it out on Currant creek in Nye county in about 1957. We got all crosswise with a landowner but we won out.
This is sad. Everywhere I have been anything below the high water mark has always been state land. It is so stupid people try to claim the land under the water as theirs. If they don’t want people on their land it should be posted above the high water mark and the water ways should be left alone. For a few places not here in the state of utah people tried to chase me off from under highway over passes where i was fishing and out of the creeks and rivers. Which those places are considered state property and all had rights to it. Which should be the way here. anything below the high water mark should be state land instead of private. Ristrictions like they have about the water ways here are stupid about private or public. I know on bodies of water back east i actually called the DNR and law myself to just get the person that tried to chase me off the state land laughed at. Here though I have to watch where I tread when I fish which highly upsets me for if a I am fishing a public access area and I catch a fish we will use this as an example if it runs down stream to private area and wraps my line in a bush that means i can’t go unrap the fish from the structure what should i do snap my line and let the fish suffer their and possibly die in the long run or should i break the law and go retrieve the fish. See there is so much conflict over this debate with land owners and anglers, floaters, and rafters. That is one of many reason I mainly fish resivors and lakes now out here and miss alot of prime fly fishing area due to the conflict. So I end up missin out on alot of prime fishing because of this. For I am still learning alot out here and tryin to obay the rules for I don’t want to gain the title as outlaw outdoorsman as wee call them back at home. Plus out here I know I ran into places that weren’t marked and I was chased off of creeks and rivers where i enter in a public area and slowly wade down fishing them. Everytime I was I did as the person said and I appoligized to them and never went back to that public access point again. Due to it. I actually had one person call the DWR on me for it when I first got to Utah and started fishin here exspecially fly fishin. What saved my butt was the officer saw my military id as I handed him my license and I explained to him I didn’t know the area was private. He let me off with a warning luckly plus he told me I had to becareful for things like that happen alot Where their is no posting of any kind along the water way. After that I never fished any river or creek in the state and basicly put my fly rod down. For I fear losing my fishing privlages and property due to a accident like that for not knowing a water way. Like i would like to fish more of the Webber river, Jordan river, and Bear river but don’t know where private land is and public down from my access points unless it is clearly marked. For alot of nice spots I would like to hit with a fly rod are not deep enough for a raft or a tube.
Utah needs to follow Idaho’s example. In Idaho angler is allowed in the stream bed below the high water mark. Anglers are also allowed to leave the river bed long enogh to go around an obstruction such as a fence or a tree.
Hopefully the Supreme court will get this one right!
What a bunch of dweves. The Utah dwr should excercise eminent domain and take that river corridor for sportsman. Its a resource worth protecting. Next thing a bunch of rich people will build along the stream then whine and cry when they get flooded out on a wet year. Worse yet they will want John Q public to pay for the whole mess. I figure if the Utah state parks can operate, control and have jursdiction on a body of water they they can do the same on a river corridor. The land owners along the river are most likely pretty calloused from dealing with bad experiences or the fear of being sued over someone getting hurt on their property. But even a recreational easment would relieve them of the liability burden and give them a nice tax break. In many cases that would make thier land worth more. With the growth in the valley and the cost of gas forcing folks to seek recreation closer in the stream access issue will most likely be spotlighted. It may be easier to get support from sportsmen to get the issue settled in thier favor.
Sorry, but Idaho does not have its ducks in a row either. A lot of my old boyhood fishing spots are now fenced off and cannot be accessed by private anglers. And, landowners put up fences around private access points to prevent people from getting in the streams…and run barbed wire fences across the streams at water level to keep floaters out too. Lots of noise and a lot of challenges but the fences stay in place.
A good example is the Big Lost River below Mackay Dam. Only a handfull of spots open to “Sportsmen”. But, you cannot go upstream or downstream from those without risking being shot or blocked by fences across the stream. My poor old aunt who has fished it all her life just quit fishing rather than fighting it any more.
Sorry, but Idaho does not have its ducks in a row either. A lot of my old boyhood fishing spots are now fenced off and cannot be accessed by private anglers. And, landowners put up fences around private access points to prevent people from getting in the streams…and run barbed wire fences across the streams at water level to keep floaters out too. Lots of noise and a lot of challenges but the fences stay in place.