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SALT LAKE CITY — A controversial and complicated legal case involving public access, private property and the state's rivers and streams is once again headed to the Utah Supreme Court — perhaps for final resolution.
The stream access issue, which is two cases that will be argued back to back Monday, involves the ability of anglers or other outdoor recreators to access streams and rivers from a public right of way, even though the water may flow through private property.
"It's a difficult issue that not everybody agrees river by river on," said Chris Barkey, director of the Utah Stream Access Coalition. "But Utah's constitution says the public owns the water and there should be access."
The coalition wants the state's high court to affirm two district court decisions involving public access to the state's rivers and streams.
Opponents, including the state of Utah and a coalition involving the Utah Farm Bureau, say the right of private property owners to be secure in their investment and control what happens on their land has been trumped by the lower court decisions.
"I believe the district courts erred and hope that the Utah Supreme Court reverses those decisions," said Randy Parker, chief executive officer of the Utah Farm Bureau. "This would set a horrible precedent and have a dramatic impact on private property rights."
One of those rulings, out of the 4th District Court, arose out of the coalition's challenge to a 2010 law passed by the Utah Legislature that put new restrictions on access to rivers and streams, including requiring anglers and others to get property owners' permission if they leave the water and touch land.
Judge Derek Pullan ruled that the practical effect of the law was to cut off access to 2,700 miles — or 43 percent of the state's rivers and streams.
The other case stems from a dispute involving landowners along a 1-mile stretch of the Weber River. One of those property owners is Stewart Grow, whose deeded property includes a stream bed water flows over.
The ruling by 3rd District Judge Keith Kelly ordered landowners to remove their no trespassing signs in a decision blasted by critics as "judicial activism."
Other states, including Montana, say the public — such as anglers, floaters and other recreationists — have access to streams and rivers, regardless of whether the water is navigable and regardless of who owns the stream bed.
Colorado, in contrast, says both the surface of the water in streams and rivers belong to the person who owns the stream bed, as well as the air above the waterways.
The root of the tension swirling on stream access involves allegations of trespassing, destruction of private property, littering and public defecation.
Barkey said he believes allegations of damage have been greatly exaggerated.
"There are a big lot of fairy tales out there," he said, adding that the larger problem is lack of enforcement of existing laws.
"There is no condoning of trespassing. That should all be prosecuted."
But Parker maintains that such unfettered access is an unconstitutional taking of private property.
"In my mind, these stream beds have been private property, in private hands for generations or in some cases since statehood or before. They are within a property description, and these property owners are paying taxes on them," he said.
