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Environment: River Dance



River Dance Legislator shops a bill to undo a court ruling on public access to rivers.

By TED McDonough tmcdonough@cityweekly.net

Gerald Nielson, an avid angler and attorney, waited years for a case that could open all Utah’s rivers to fly fishing, rafting and bird watching. In Utah, the public has always owned the river waters and had the theoretical right to use them, even on private property. But unlike the fly-fishing haven of Montana, those who try to cast their lines on Utah rivers risk getting shot. Nielson finally got the case he wanted in 2000, when a Roy man was arrested for allegedly trespassing on private property while fishing on the Weber River. The case alleged Kevin Conatser trespassed by standing on the river bottom, which in Utah—unlike in Montana—is private property. Last summer, the Utah Supreme Court ruled in the Conatser case that the public’s right to use the water for recreation includes use of the river bottom. The ruling effectively opened up miles of previously off-limits river water throughout Utah. “The public [has] the right to float, hunt, fish and participate in all lawful activities that utilize the water,” the court wrote.

Just six months later, Utah lawmakers are busy writing a river-access law in what Nielson calls an, “insidious attempt to take back the Supreme Court decision.”

Rep. Ben Ferry, R- Corinne, a farmer and member of the Republican House leadership team, has been shopping a bill that purports to limit the Supreme Court decision, in part by listing rivers to which the decision would apply. Initially, some river-user groups with which a draft bill was shared thought the bill wasn’t bad, but subsequent versions keep narrowing down the rivers on the good list, Nielson says. A river-users coalition of anglers, rafters and birders had scheduled a Feb. 3 meeting with Ferry and hoped to have input into a final bill. Paul Dremann, with Trout Unlimited, says it would be a good idea for the Legislature to define where river users are allowed to walk, so recreational users and land owners are clear. The Utah Supreme Court ruled the public had a right to the riverbed, but didn’t define riverbed.

River-user groups would like to see Utah adopt the definition used in Montana: the high water mark—the place on the bank where grass begins to grow. But different definitions might mean that river users couldn’t leave the water during high spring flows.

River-recreation groups are more suspicious of the attempt to list rivers to which the ruling would and wouldn’t apply. Dremann says he can see removing river stretches that run through back yards in urban settings, like Mill Creek, but says expecting river users to navigate a system of go and no-go river sections is impractical.

Nielson says that listing tactic, if pursued, is likely only to land the issue back in court. “I don’t believe the Legislature can affect the Supreme Court ruling,” he says. The right to the riverbed now granted by the court can’t be legislated away, he says. One group weighing in for legislative action is the Utah Farm Bureau. The bureau warns the Supreme Court ruling will devalue property in neighborhoods where homeowners have enjoyed exclusive use of streams running through their back yards. It also says the ruling will mean removing farm fences so the public can access rivers, resulting in cattle wandering on to highways.

Some, like Salt Lake City fly fisherman and conservationist John Weis, see no reason for river users to negotiate away the riverbed. “I think the Supreme Court got it right in the first place,” he says. For a better way of dealing with the issue, he points to Montana, where the Legislature is currently considering a law that would let farmers keep their cattle fences, but provide stairs so anglers could climb over. Steve Schmidt, owner of the Western Rivers Flyfisher guide shop, says landowners shouldn’t be afraid of open rivers. Far from losing property value, property owners—and Utah generally—stand to make big money from tourists, if the Supreme Court ruling is left as broad as possible.

Just check out land prices along Montana’s Flathead River, he says. The Supreme Court ruling “makes our state a lot more attractive from the outside world to come visit it,” he says. “I’m already getting e-mails.” CW