From the good folks at the Utah Stream Access Coalition last week –
SALT LAKE CITY, UT – On February 20, the Utah Supreme Court issued its much-anticipated decision in the Utah Stream Access Coalition’s (USAC) lawsuit challenging the constitutionality of Utah’s ill-named Public Waters Access Act. In that case, USAC argued that the Act violated the State’s constitutional public trust duties by eliminating the public’s right to lawfully access and use more than 2,300 miles of Utah’s fishable rivers and streams, a right that had been recognized in a series of Utah Supreme Court decisions. USAC prevailed on these arguments in the lower court and the opposition appealed; a process that spanned almost three-and-a-half years and entailed three rounds of briefing and two rounds of oral argument.
The Utah Supreme Court’s February 20 decision does not resolve the case. Instead, the Court identified but declined to decide the five core issues in the case, reversed the lower court’s decision on one of those issues – specifically whether public right at issue was in place when the Utah Constitution was adopted in 1895 and thus rooted that right in the Constitution- and sent the case back to the lower court for further proceedings on that issue and the others. If the lower court determines that the public easement was rooted in the Constitution, the Utah Supreme Court’s February 20 decision provides helpful guidance as to what should be considered in resolving the remaining four issues; guidance which USAC believes is cause for optimism. USAC will move forward with the case and is cautiously optimistic that it will ultimately succeed in striking down the Act’s restrictive stream access provisions.
None of this changes the Court’s ruling in an earlier USAC case that the Upper Weber river is navigable and thus open to public use. That decision clearly paves the way for similar determinations on several other Utah rivers and streams that were navigable at the time of statehood.
Read the decision as drafted by the Court here.
Overall, USAC’s optimism proffered in their release above seems reasonable, though unfortunately the Court, in side-stepping the issue and remanding back to a lower court, guarantees a long, drawn-out process that favors the deeper pockets on the wrong side here.
It ain’t over, dammit.
