What anglers need to know
On Nov. 4, 2015, Judge Derek Pullan of Utah’s Fourth District Court issued his final judgment in the case of Stream Access Coalition v. VR Acquisitions, et al. The judge ruled that provisions of the 2010 Public Waters Access Act were unconstitutional.
After reviewing the ruling, the Utah Division of Wildlife Resources believes that the recreational easement originally recognized in the 2008 Utah Supreme Court ruling on Conatser v. Johnson is again in effect. This easement allows individuals to legally walk the privately owned bed of a public waterbody, as long as they are participating in lawful recreational activities that utilize the water.
Here are answers to common questions about the recreational easement and what it allows:
What kind of waters does the easement apply to?
The easement is limited to public waters. Public waters are natural lakes and natural-flowing rivers, streams, and creeks located on private land. For the easement to apply, a watercourse must have sufficient water to support lawful recreational activities. There is no right of access in waters diverted away from natural waters, including diversion works, canals, ditches, man-made streams, flumes, off-stream reservoirs and so forth.
What does the easement allow?
The easement allows the public to float the surface and walk the privately owned bed of public waters while engaging in lawful recreational activities that utilize the water.
What kind of recreational activities utilize the water?
Recreational activities that utilize the water are those where touching the wet riverbed, lakebed or streambed is reasonably necessary to enjoy or accomplish the activity. Recreational activities that utilize the water may include fishing, swimming, wading, waterfowl hunting and floating.
What is an unlawful activity?
Any recreational activity carried out in violation of law is outside the scope of the easement. In other words, public access in public waters is prohibited when activities involve unlawful conduct such as littering, disorderly conduct, hunting or fishing in violation of law, substance abuse, intoxication, lewdness, vandalism or other similar behaviors.
Can I cross private property to gain access to a waterway?
No. The easement does not authorize the public to trespass across private property to enter or exit public waters. Access to and from the surface or bed of the water must be obtained at a lawful access point, such as a highway right-of-way, public property or private property with written landowner permission.
Does the easement allow public use of the bed for any purpose?
The easement does not apply to all activities — it is limited to lawful recreational activities that are directly related to the use of the water. Where touching the bed of the waterbody is unnecessary to enjoy or accomplish the recreational activity, public access is not allowed. For instance, walking the bed of a river to simply gain access to a parcel of public property for purposes of hunting, camping, or hiking is not a recreational activity directly related to use of the water and is therefore outside the scope of the easement.
Does the easement allow access for fishing?
Yes. The easement allows public access on the surface and bed of public waters for purposes of lawful, recreational fishing, provided the fishing activity takes place in the waterway being used.
Does the easement allow access for hunting?
Lawful hunting is a recognized recreational activity under the easement, provided the hunting activity itself is tied to utilization of the water. This requirement may limit use of the easement to waterfowl hunting only because terrestrial game hunting does not require use of the water. Using the easement to hunt waterfowl, however, may be problematic because the easement does not allow the hunter or his dog to leave the waterway to retrieve downed waterfowl. Additionally, hunting may be restricted in developed areas by public and local laws prohibiting the discharge of firearms near dwellings or within municipal boundaries.
Does the easement allow access for rafting, boating, and tubing?
Does the easement allow access for wading and swimming?
Does the easement allow access for horseback riding?
No. Recreational horseback riding does not inherently require utilization of the water. Therefore, it is not an eligible recreational activity for public access.
Can I use a waterway as a travel corridor to access other property?
No. Using a waterway merely as a travel corridor to get from point A to point B does not involve a recreational activity that utilizes the water. This is true even where the waterway is used to access other property for purposes of recreation. For the easement to grant public access, the recreational activity must be tied to the water in the waterway.
Does the easement allow wheeled vehicular travel?
No. The easement limits public use of the bed to lawful recreational activities that utilize the water. Wheeled vehicular travel, including bicycling, is not a recreational activity that utilizes the water or otherwise requires water to be practiced. Further, the easement does not allow the public to unreasonably use public waters or to injure the affected landowner.
Are there other limitations on recreational activities covered by the easement?
Yes. The easement does not allow the public to unreasonably use public waters or to injure affected landowners. These restrictions preclude the public from damaging the owner’s property or interfering with the quiet enjoyment of the property. Activities that potentially violate this requirement may include damaging fences or structures, leaving gates open, destroying or removing vegetation, rocks, or soil; trespassing, excessive noises; vulgar language; altering the bed or flow of the waterbody; littering; public indecency; building recreational structures such as hunting blinds; and other similar behaviors.
What is the bed of the waterbody?
The Utah Supreme Court did not define what constitutes the bed, but other states interpreting similar access rights define it to include the area within the ordinary high-water mark. The best indicator of the ordinary high-water mark is the vegetative line on the banks of a waterbody where topsoil, grass, shrubs and trees occur in a manner consistent with an area that is not routinely flooded. Since the Court did not specifically define the term “bed,” be advised that law enforcement agencies across the state may interpret bed more narrowly to include only that portion of the bed actually covered with water.
Can I leave the bed for any reason?
No. The Supreme Court did not find or conclude that the easement allows the public to leave the surface or bed of the waterbody on private property. This limitation prohibits retrieving game animals, recovering wandering pets or untangling fishing line from shoreline vegetation.
What should I do if I encounter a fence, dam or dangerous obstacle in the waterway?
Judge Pullan's Nov. 4 ruling was unclear on this particular issue, and the State of Utah has requested clarification on the ruling. As soon we have additional information, we will update this page. In the meantime, if you choose to briefly leave the streambed or riverbed to travel around an otherwise impassable object, you are doing so at your own risk. While recreating, please make an effort to be respectful of others and their property.
Does the easement exist in dry streambeds and lakebeds?
No. The easement limits public use of the bed to lawful recreational activities that utilize the water. Any recreational activity conducted in a dry bed does not require utilization of water. This distinction should not be confused with incidentally touching dry portions of a bed while engaging in a recreational activity that utilizes the wetted portions of the bed.
Does the easement exist on Native American trust lands?
No. The Utah Supreme Court did not recognize a public right of access in waters on Native American trust lands. The State of Utah does not have jurisdiction or authority to create access rights on Native American trust lands. Such issues remain the exclusive domain and responsibility of the respective tribes and the federal government.
Are landowners liable for injuries sustained by people using the recreational easement?
The Limitation of Landowner Liability Act in Utah Code Section 57-14-1, et seq. protects landowners who open their property to the public, free of charge, for recreational purposes. Under the Act, landowners are not liable for injuries or damages sustained by people using a waterway for recreational purposes, unless the injuries are caused by the landowner’s deliberate, willful or malicious acts or omissions. Easement users assume the risk of injuries and damages while using the waterway.
Important: The above information reflects the opinions and interpretations of the Utah Department of Natural Resources, Division of Wildlife Resources. The opinions and interpretations presented are not binding on courts, prosecuting attorneys or other law-enforcement agencies. They are provided solely for general information and do not represent legal advice or counsel.