Recreational access in state waters on private land

The Utah Supreme Court issued an opinion on July 18, 2008 (Conatser v. Johnson, 2008 UT 48) recognizing that the public has a recreational easement to walk the privately owned bed of state waters while engaging in lawful recreational activities that utilize the water. In doing so, the court reaffirmed its 1982 ruling in J.J.N.P. Co. v. Utah, 655 P.2d 1133 (Utah 1982) that the public has a right to use the surface of state waters for recreational purposes.

It is important to understand the scope and limitations of the easement recognized in the Conatser decision. The DWR is providing the following information to clarify what the easement allows and what it does not — we do not intend it as legal advice or a definitive legal analysis. The following opinions and interpretations are not binding on courts, prosecuting attorneys, or other law enforcement agencies. The DWR provides this guidance solely for general information.

State waters: The easement is limited to "state waters" and allows public recreational access on the surface and bed of natural lakes and natural flowing rivers, streams, and creeks on private land. There is no right of access in diversion works, canals, ditches, artificial streams, or off-stream reservoirs on private land. Also, a watercourse must have sufficient water to support lawful recreational activities before the public has a right of access on its surface or bed.

Bed of state waters: Once lawful access to a state water is obtained, the easement allows the public to walk on the privately owned bed while engaging in recreational activities that utilize the water. Although the Utah Supreme Court did not explain what constituted the bed, other states with similar access rights define it to include the area within the ordinary high water mark.

Ordinary high water mark: The best indicator of the ordinary high water mark is the vegetative line on the banks of a water body where topsoil, grass, shrubs, and trees occur in a manner consistent with an area that is not routinely flooded.

• A word of caution — Since the Court did not specifically define the term "bed," law enforcement agencies across the state may interpret bed more narrowly to include only that portion of the bed actually covered with water.
• Activity outside the ordinary high water mark — The Supreme Court did not find or conclude that the easement allows the public to leave the surface or bed of the water body on private property without permission of the landowner.

Lawful access. The easement does not allow the public to trespass across private property to gain access to state 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.

Recognized recreational activities: The easement allows public use of state waters while engaging in lawful recreational activities that utilize the water. If the recreational activity is unlawful or does not utilize the water, there is no right of access for that activity.

• Unlawful activities — The easement does not allow access to people engaged in illegal activities while using a waterway for recreation, such as hunting or fishing in violation of law, littering, substance abuse, intoxication, lewdness, disorderly conduct, or vandalism.
• Utilize the water — The easement does not apply to all recreational activities, but is limited to those activities that are directly related to the use of the water. Where use of the water and touching the bed is unnecessary to effectively enjoy or practically accomplish the recreational activity, public access is not allowed.

Reasonable use and unnecessary injury to the landowner: The easement does not allow the public to use state waters in an unreasonable manner or to unnecessarily injure the affected landowner. These restrictions preclude the public from unnecessarily damaging the owner's property or interfering with his property rights. Activities that potentially violate this requirement may include: damaging personal property, damaging or removing fences; leaving gates open; trespassing outside the bed of the water body; excessive noises; vulgar language; altering the bed or flow of the water body; littering; public indecency; building recreational structures on the bed, such as hunting blinds; destroying or removing vegetation, rocks, or soil, etc. If the public acts beyond these restrictions, it has exceeded the scope of the easement.

Landowner liability and assumption of risk: The Limitation of Landowner Liability Act, in Utah Code Section 57-14, 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 to 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 that occur while using the waterway.

Finality of the Conatser decision: The decision attempts to strike a balance between the property rights of private landowners and the public's right to recreate on public or state waters. The public right of access is based on Utah statutes. The court's ruling is not necessarily the final word on this subject because the Legislature can change the law. Thus, recreationists exercising the easement should respect landowner rights, obey the law, be responsible in all actions, and be courteous.