A decision last week by the Utah Supreme Court declaring the public’s right to fish streams that flow through private property has set off a tidal wave of celebration among anglers.
Whether the ripples extend to Colorado and other Rocky Mountain states remains to be seen.
The unanimous Utah decision allows recreationists — anglers or rafters — to walk on the beds of all streams or rivers irrespective of who owns the land beneath them. The crux of the high court decision is that the public owns these waters and it cannot effectively exercise the right to recreational activities without the ability to touch stream bottoms.
Certain aspects of the ruling appear to create uncertainties that suggest further legal and administrative scuffling. The matter also is likely to spur intense legislative activity, as well as appeals into the federal court system.
In declaring that water users must behave “responsibly,” engage only in “lawful recreational activities” and cause “no unnecessary injury to landowners,” the court appears to have set the stage for potential conflict that must be handled by state regulators.
Much of that burden will fall upon the Utah Division of Wildlife Resources.
“Our law enforcement arm will be one of the primary groups that will enforce the scope of the public easement, deciding what is inside or outside that easement,” said Martin Bushman, Utah assistant attorney general assigned to Wildlife Resources.
Utah thus becomes the third state in the region to grant stream-bed access. The Montana Legislature in 1985 passed a stream access law that has withstood numerous legal challenges, including an appeal to the U.S. Supreme Court. Idaho has a similar law allowing access to the high- water mark.
Observers of the Utah situation believe landowner groups now will promote legislation designed to countermand the court decision.
“Any proposed legislation would try to limit the easement, or eliminate it,” Bushman said.
Other legal maneuvers might involve appeals to the federal judiciary. Such a development, Bushman said, would require plaintiffs to demonstrate that the decision has violated some sort of federal right protected under the Constitution.
Most Rocky Mountain states operate under laws or court rulings that restrict public use of streams to the water itself; contact with the stream bed must be incidental to navigation.
The legality of Colorado stream access seems particularly confusing amid conflicting legislation, case law and official interpretation. In recent years, action groups have formed on both sides of the question amid abortive efforts to pose stream access as a ballot initiative. Impending court tests have been abandoned when plaintiffs decided not to bring the matter to a head.
None of this has served to ease the legal muddle in a state where issues involving population pressure and land values may vary considerably from its near neighbors.
Whether the Utah decision stimulates Colorado advocates of public stream access to press for similar action will be determined in the months ahead. However this plays out, some definitive resolution is long overdue.
Goose pitches for elk.
Rocky Mountain Elk Foundation president and CEO David Allen was among the special guests of Goose Gossage at his Sunday induction into the National Baseball Hall of Fame.
Gossage, an avid hunter and fisherman, is a volunteer for the foundation, having helped start Team Elk, a celebrity group organized to promote RMEF’s mission of habitat protection. Team members include golf great Jack Nicklaus and NASCAR team owner Richard Childress.
