August 5, 2008

Landowners Urge Justices to Rethink Open Streams Decision

By Stephen Hunt, The Salt Lake Tribune

Aug. 5--A group of Weber River Valley landowners is asking the Utah Supreme Court to reconsider the court's recent decision allowing anglers, rafters and other river users to walk in publicly owned waterways -- even when the water flows through private land.

Utah's angling community has applauded the decision, saying it will open streams to the public that were previously accessible only to individuals who gained permission from landowners.

But attorney Ronald Russell, on behalf of the landowners, claims that letting the public use privately owned streambeds will result in "destroying billions of dollars in property value" statewide.

Russell also claims in his motion for a rehearing that the high court's decision is "illogical" because it relies on the "flawed premise" that the public can have an easement over water it already owns.

An easement is a privilege one person has over the land of another, Russell noted.

The high court's decision also conflicts with case law in other states where the public is allowed to float navigable rivers, but is not allowed on non-navigable streams on private land.

The case began in 2000, when Kevin and Jodi Conatser, of Roy, were cited for trespassing after leaving their raft to walk and fish a five-mile stretch of the Weber River near the town of Peterson.

The Conatsers subsequently filed a civil suit against the landowners, seeking a court ruling as to whether they had a right to walk in the river.

Second District Judge Michael Lyon ruled against them, finding they had the right to touch the riverbed only to assist in floating, such as freeing a raft that was stuck.

But the Utah Supreme Court unanimously overturned Lyon's decision, saying that without the ability to touch stream bottoms, members of the public cannot effectively enjoy their right to recreational activities on state waters, all of which are owned by the public.

Attorney Robert H. Hughes, who represented the Conatsers, has called it "a landmark decision in the body of law on public waters."

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