Update from USAC

January 24, 2013

Frenzy

Happy New Year! As we look back at 2012, our accomplishments exceed the few short years we’ve been in existence as an organization. From a grassroots beginning in 2010, we’ve grown to over 3,000 members strong, with our membership spanning all six corners of Utah. We have filed 2 lawsuits challenging the “Public Waters Access Act,” and we continue to pursue legislative compromise to restore access to our UT waters. We’ve strengthened partnerships in both the Fly Fishing and Outdoor Industries with organizations and corporations eager to see our access issues resolved. It’s been a busy year for all of us. For everything we’ve accomplished – we thank our members, volunteers, and donors! 2013 is off to a productive start: Our Provo River case (Public Waters) wrapped up at the district court level, and the Weber River case (Navigability) goes to the district court. Our counsel continues the legal battle to restore access. An update on the status of both cases can be found in the “Legal Update” below. On the legislative front, we face another battle. Kay McIff, author of HB 141, has proposed another controversial bill, HB 68. This bill has opened the opportunity for USAC to bring forth legislation that would end this conflict once and for all. Our voice is only as loud as our membership, and WE NEED YOU to contact your legislators and voice your opinions on Stream Access. Details on the legislative session and USAC’s goals can be found in the “Legislative Update” below. Our 2013 events are highlighted on the right sidebar. Note the dates, and we hope you’ll join us!

Legal Updates

 

USAC’s Public Waters Case:

 

USAC brought this case to overturn Utah’s ill-named Public Waters Access Act (HB 141) on constitutional grounds. In 2008, via Conatser v. Johnson, the Utah Supreme Court held that the public’s right to lawfully access and use its public waters in place for any lawful activity, including recreation, allowed the public to reasonably touch the privately-owned beds of public waters in ways incident and necessary to such use. In 2010, with passage of HB 141, the Utah legislature purported to overrule the Conatser decision and to abolish the public’s right to touch privately-owned streambeds when using public waters in place. USAC’s suit claimed that the public’s right to use public waters in place was recognized and confirmed in the Utah Constitution at statehood and that HB 141 violates this right, as well as public trust and separation of powers principles. A favorable ruling in this case will restore the public’s right to use public waters in place as confirmed in Conatser.

 

Following briefing and oral argument, Judge Derek Pullan agreed that the public’s right to use its public waters in place was recognized and confirmed in the Utah Constitution and that H.B. 141 violated the separation of powers doctrine. Further, while Judge Pullan disagreed that H.B. 141 violated this constitutional right, he did recognize that H.B. 141 may violate the public trust and requested further briefing from the parties on that issue.

 

That briefing has been submitted, and oral argument concluded before Judge Pullan on Tuesday, January 22. Once again, Judge Pullan commended the excellent legal writing from both sides. USAC counsel anticipates that Judge Pullan will issue his ruling on this latest round of briefing and argument no later than March 2013.   Regardless of the final outcome at the District Court, USAC’s Public Waters case will be “cross-appealed” to the Utah Supreme Court. We will keep you informed of USAC’s progress at Utah’s highest court as it develops.

 

As always, all major briefs in this case can be downloaded for review from the USAC website’s Public Waters Case page under the Lawsuits tab. (See:  http://utahstreamaccess.org/usac-wp/public-waters-case/)

 

 

USAC’s Navigability Case:

 

USAC brought this case to confirm the navigability and public ownership of the bed of the Weber River. USAC contends that the Weber is a “navigable river” because it has long served as a highway for public commerce and recreation. The beds of navigable rivers are public property up to the ordinary high water mark, and adjoining private property owners may not interfere with the public’s right to use the river corridor for lawful recreational purposes. A ruling that the Weber is navigable will restore public access to this river and will lay the groundwork for similar rulings on other Utah rivers.

 

USAC’s historical research on the navigability of the Weber River and its use for commerce prior to Utah becoming a State was concluded in November. The findings of the research team and our professional research assistant were digitized and compiled into a massive database of historical sources on navigation and commercial use of the Weber, Provo, and other nearby rivers. The key findings are being incorporated into an extensive report by our expert witness – a history professor at Weber State University.   The final report will be filed with the 3rd Judicial District Court for Summit County, Utah, by January 31, 2013. The case was brought before the 3rd District Court because the sections of the Weber River being addressed in the case are within Summit County.

 

Our attorneys intend to release the final report on the navigability of the Weber River to the public so members of the Utah Legislature might have a chance to familiarize themselves with its implications during the 2013 General Legislative Session. The supporting database will also be made available to the public once the final report has been released. The USAC has compiled quite an impressive amount of evidence in support of their assertions.

 

Once the final report has been submitted to the court, the defendants, including the State of Utah, will have one month to file a rebuttal report if they choose to do so. A trial date will be requested after any depositions of our expert witness occur, and the date of the trial will depend upon the court’s schedule. It is expected that the trial will take place during the latter half of 2013, with a ruling shortly thereafter. As always, we will keep you updated as the situation develops.

 

 

Legislative Update:

 

Representative Kay L. McIff of District: 70 has drafted legislation for this year’s session that preempts Judge Derek P. Pullan’s possible decision with regard to public trust doctrine. This bill, HB068, intertwines public trust with appropriated water rights and stream access and use. The water appropriators groups do not want any language regarding public trust. This has created an opportunity for the USAC to attempt to bring forth a compromise bill (Idaho law) to end the conflict. If USAC were to drop the Public Trust case on the Provo River and the Navigability case on the Weber River in lieu of Idaho law, the problem of public trust with the state being looked at as a trustee of appropriated water is alleviated, as well as the conflict of property rights. WE NEED YOU to contact your senators and representatives to get them on board with this compromise.

 

 

Call to action:

 

We ask all members to contact our legislators immediately by phone, in person, or by paper mail: emails are too easily overlooked. Make your voice and your vote heard! Look-up your Senator and Representative at the bottom of this page: http://le.utah.gov/GIS/findDistrict.jsp

 

We urge you to get in contact with your with your representatives and senators immediately. Effective communication becomes increasingly difficult after the session begins on January 28. In addition, there are 37 new Representatives in office this session. If you live in their district, you have the opportunity to shape their opinion on stream access and use. A spreadsheet listing the new reps can be found here: http://bit.ly/10x5sIc  

 

Talking Points:
1. How does he/she feel about a compromise on stream USE?

 

2. Has he/she heard about or followed our Public Waters case and if so – has he/she been aware of the Public Trust Doctrine and how it could affect other water issues? (i.e. appropriated water due to what McIff is drafting with “Public Trust Doctrine” language.)

 

3. Has he/she heard of the Weber Navigability case and how it would affect title to the streambeds?

 

4. USAC efforts are NOT targeted to affect private property rights nor property owners. USAC only wants to use the waters from public right-of-ways below the “Ordinary High Water Mark” (OHWM) and existing public lands and public easements such as Division Wildlife Resources and “Walk-In Access” areas where property owners have already compensated for access. This program has grown noticeably over the past two years.

 

5. USAC does NOT want anything to do with appropriated water. We have established our stance in the two filed court cases with the Utah Water Development Committee when our legal representation attended meetings on said topic.

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