# FYI: This Just In: Stream Ruling on Provo River



## HopperLover (Jul 7, 2008)

http://utahstreamaccess.org/usac-wp/files/ThisJustIn-PublicWatersCaseRuling/index.htm

Legal Update

This just in - The Honorable Derek Pullan recently ruled on our Public Waters (Provo River) case. As you recall, last May Judge Pullan requested additional briefing regarding the Public Trust doctrine. This decision addresses the public trust issues we raised, and disagreed with many assertions made by the Defense. In particular, the court rejected the arguments that:

* The State's public trust duties are purely procedural.
* The State has no trust duties to recreationalists.
* There could be no trust violation because the State still holds the easement.

In addition, the court concluded that the severity of the restrictions on the public's easement rights amounts to a disposal or "taking" of that easement. Therefore, the only question that remains is whether the public's interest in the use of its waters was "substantially impaired" by taking away of these rights. This is a purely factual question that requires the court to take evidence on the impact of the statute.

Simply put, the court agrees with the legal arguments brought by the USAC. Now all we have to do is prove exactly what was lost as a result of the Public Waters Access Act.

While on the surface it may seem like not much is different in this ruling, make no mistake: this is a huge win for us, and goes much farther than the prior ruling. With the legal questions out of the way we can focus on the facts. The Coalition is confident in our ability to provide the court with ample evidence of what has been taken from the public, and the impact it has had on citizens of the State of Utah. Regardless of how Judge Pullan finally resolves the case, it will be appealed to the Utah Supreme Court.

A full version of the ruling can be found here.

We would like to thank our outstanding legal counsel for their tireless efforts to this cause, and thank you for your continued support.

Board of Directors
Utah Steam Access Coalition
[email protected] 
www.utahstreamaccess.org


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## lunkerhunter2 (Nov 3, 2007)

Awesome!


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## Catherder (Aug 2, 2008)

Alrighty then, cue the celebration!


OOO°)OO*-band-*


*OOO**OOO*


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## HopperLover (Jul 7, 2008)

> Now all we have to do is prove exactly what was lost as a result of the Public Waters Access Act.


Does anybody know what this involves? And how long it will take?


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## HopperLover (Jul 7, 2008)

I apologize. This is an article from 2013. It showed up on my facebook newsfeed today for some reason. Thus I thought it was new. Sorry.


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## Rspeters (Apr 4, 2013)

Showed up on mine too.


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## Kwalk3 (Jun 21, 2012)

http://myemail.constantcontact.com/...ccess.html?soid=1104773210955&aid=LTfacI45bKs

The post yesterday may have been old news, but today this appears to be current and represents a big win.....Now to get through the appeals.


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## spencerD (Jan 14, 2014)

Posted directly from an email I received from them this morning: 

Yesterday afternoon, Judge Derek Pullan of Utah's 4th District Court ruled in favor the public's right to lawfully access and recreate on ALL of Utah's public rivers and streams.Take a breath, and drink that in. WE DID IT. YOU DID IT.

The ruling culminates a lawsuit filed by the Utah Stream Access Coalition in 2010, which sought to declare the "Public Waters Access Act" unconstitutional. The Act, contrary to its title, effectively disposed of the public's right to use over 2,700 miles of Utah's rivers and streams where they ostensibly cross over private property, many miles of which have benefited from publicly-funded habitat and stream bank restoration, flood abatement, and other projects. The lawsuit named as defendants the State of Utah and Victory Ranch, a Wasatch County development selling luxury home sites offering exclusive access to more than four miles of the Provo River, one of Utah's premier blue ribbon trout fisheries.

"This is a case where policy triumphed over profits; where law prevailed over lobbying" Coalition President Kris Olson said. "The rivers and streams of our state are gifts of providence, and the lifeblood of this arid land. Since before statehood, these rivers have been used by all, and we're grateful that the Court prevented that use from becoming exclusive to a privileged few."

In the 61-page decsion, Judge Pullan noted that the Act served no trust or greater public purpose and substantially impaired the public's interest in the resource that remains, that is, the waters and streams of Utah. The Court observed that "Every parcel of public land, every reach of public water is unique. If Wasatch, Kodachrome Basin, and Snow Canyon State Parks were disposed of...the public's right to recreate in other places would be of little consolation."

In the ruling the Court prohibits Victory Ranch from any action which 'prohibits, prevents, impedes, limits or impairs the public's right to access the Upper Provo River where it flows through VRA's property,' and prohibits the State of Utah from enforcing the restrictions provided in the Act. 

Everyone go fish Victory Ranch this weekend and give them a smile and a wave. They can't keep us off our water any longer.


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## HopperLover (Jul 7, 2008)

Yes. So sorry about all the confusion.

Here is the current article on the Utah Stream Access Coalition website:

http://myemail.constantcontact.com/...ccess.html?soid=1104773210955&aid=LTfacI45bKs

Yesterday afternoon, Judge D erek Pullan of Utah's 4th District Court ruled in favor the public's right to lawfully access and recreate on ALL of Utah's public rivers and streams.Take a breath, and drink that in. WE DID IT. YOU DID IT.

The ruling culminates a lawsuit filed by the Utah Stream Access Coalition in 2010, which sought to declare the "Public Waters Access Act" unconstitutional. The Act, contrary to its title, effectively disposed of the public's right to use over 2,700 miles of Utah's rivers and streams where they ostensibly cross over private property, many miles of which have benefited from publicly-funded habitat and stream bank restoration, flood abatement, and other projects. The lawsuit named as defendants the State of Utah and Victory Ranch, a Wasatch County development selling luxury home sites offering exclusive access to more than four miles of the Provo River, one of Utah's premier blue ribbon trout fisheries.

"This is a case where policy triumphed over profits; where law prevailed over lobbying" Coalition President Kris Olson said. "The rivers and streams of our state are gifts of providence, and the lifeblood of this arid land. Since before statehood, these rivers have been used by all, and we're grateful that the Court prevented that use from becoming exclusive to a privileged few."

In the 61-page decsion, Judge Pullan noted that the Act served no trust or greater public purpose and substantially impaired the public's interest in the resource that remains, that is, the waters and streams of Utah. The Court observed that "Every parcel of public land, every reach of public water is unique. If Wasatch, Kodachrome Basin, and Snow Canyon State Parks were disposed of...the public's right to recreate in other places would be of little consolation."

In the ruling the Court prohibits Victory Ranch from any action which 'prohibits, prevents, impedes, limits or impairs the public's right to access the Upper Provo River where it flows through VRA's property,' and prohibits the State of Utah from enforcing the restrictions provided in the Act.

The Coalition recognizes YOU, our members and supporters who made this happen. If not for you, we NEVER could have made it this far. But remember, this is only only one more step towards resolution. While we have won both (the Weber and Provo) cases at the district court level, we still anticipate two appeals to the Utah Supreme Court. After enduring the course of these two battles, we need you to recharge our war chest. We have shown our face in battle. We will not back down. Now is the time to stand up - to fight for your rights - the rights of future Utahans, and to make a donation for what you believe in. Our legislative battles are forthcoming, as are our appeals to the Utah Supreme Court. Support our rights to use our rivers and streams, now, and for generations to come.

Board of Directors
Utah Steam Access Coalition
[email protected] 
www.utahstreamaccess.org


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## Catherder (Aug 2, 2008)

One serious question. Do we know if the HB141 ruling only applies to Victory ranch or if it applies to the entire state? The navigability ruling only applied to a part of the Weber.


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## Kwalk3 (Jun 21, 2012)

Catherder said:


> One serious question. Do we know if the HB141 ruling only applies to Victory ranch or if it applies to the entire state? The navigability ruling only applied to a part of the Weber.


http://www.sltrib.com/news/3141689-155/judge-invalidates-law-says-utahs-trout

Seems as if the district court has ruled that HB141 violates the Utah Constitution and public trust doctrine in it's entirety.

At least that's how I read it. Maybe somebody with a more intimate knowledge of the proceedings can further clarify?


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## spencerD (Jan 14, 2014)

Kwalk3 said:


> http://www.sltrib.com/news/3141689-155/judge-invalidates-law-says-utahs-trout
> 
> Seems as if the district court has ruled that HB141 violates the Utah Constitution and public trust doctrine in it's entirety.
> 
> At least that's how I read it. Maybe somebody with a more intimate knowledge of the proceedings can further clarify?


As of right now (I've been working with USAC) we have carte blanche on all rivers in Utah. There will be a supreme court appeal, but anglers will win. After all, the supreme court ruled Herbert's original law unconstitutional to begin with, so he created an executive order to push HB141 through the legislature. Between him and Ken Ivory, we've had some real crooks stealing our public property.

Go out and enjoy every bit of river. Remember to access from public access points and to respect the private land - no littering, etc. But don't be afraid to grin like an idiot while you're catching fish you haven't been able to fish for over the past 5 years.


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## Kwalk3 (Jun 21, 2012)

spencerD said:


> As of right now (I've been working with USAC) we have carte blanche on all rivers in Utah. There will be a supreme court appeal, but anglers will win. After all, the supreme court ruled Herbert's original law unconstitutional to begin with, so he created an executive order to push HB141 through the legislature. Between him and Ken Ivory, we've had some real crooks stealing our public property.
> 
> Go out and enjoy every bit of river. Remember to access from public access points and to respect the private land - no littering, etc. But don't be afraid to grin like an idiot while you're catching fish you haven't been able to fish for over the past 5 years.


Awesome. Thanks for clarifying. That's how I read it as well. You missed Rob Bishop on your list of crooks;-). Those crooks you speak of are going to waste taxpayer money again taking this fight to the Utah Supreme Court. The precedent set by the original Supreme Court ruling does give me a little comfort. I just wish the state wasn't so hell-bent on fighting against public access in any way, shape, or form.


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## spencerD (Jan 14, 2014)

Kwalk3 said:


> Awesome. Thanks for clarifying. That's how I read it as well. You missed Rob Bishop on your list of crooks;-). Those crooks you speak of are going to waste taxpayer money again taking this fight to the Utah Supreme Court. The precedence set by the original Supreme Court ruling does give me a little comfort. I just wish the state wasn't so hell-bent on fighting against public access in any way, shape, or form.


Bishop, Herbert, and Ivory all deserve to be thrown in jail for the crimes they've committed against the public.

The state's going to keep fighting this as long as they can. Herbert's brother-in-law is a developer. Ivory (while no direct connection to Ivory homes) also has his hands in the development business. And their campaign coffers are all filled by energy corporations. Everyone is a position of power in this state is bought and paid for by someone without the public's best interests at heart.

But this ruling, the other supreme court precedent, and the fact that prop 1 got voted down in 13 counties (I believe?) yesterday gives me hope that the people of Utah aren't quite the sheeple I've believed them to be. We can win this fight, and we will!


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## Catherder (Aug 2, 2008)

Been busy here at work, so I haven't had a chance to catch up. A couple thoughts.

1.


Kwalk3 said:


> http://www.sltrib.com/news/3141689-155/judge-invalidates-law-says-utahs-trout
> 
> Seems as if the district court has ruled that HB141 violates the Utah Constitution and public trust doctrine in it's entirety.
> 
> At least that's how I read it. Maybe somebody with a more intimate knowledge of the proceedings can further clarify?


Yeah, in reading both the Trib article and the email from the USAC, (I got mine too ;-) ) I agree that we are good to go. Anybody up for fishing above the Trestle this afternoon on the LoPro?

2. RE;"The state's going to keep fighting this as long as they can. "

Yep, and they are going to be using our tax dollars to do it. So we are paying to have this decision fought. Since our electorate seems reluctant to vote these folks out of office, what to do? Here's what. Give some money to the USAC! I've been involved at some tiny level with the group since it was just a list of email addressees, and the problem is always the same. Lots of folks like to talk a good game, and some will write a letter or two, but relatively few will pony up some cash or go up to Capitol hill. Even small amounts are helpful so forgo the Mickey D's for lunch today and send the proceeds to the USAC. I guarantee that Sherbert, Mciff, Randy Parker and his Farm Bureau pals will appeal this decision and we will need funds to keep up the fight. You are already paying for the opposition so at minimum, even it out.

3. RE" Remember to access from public access points and to respect the private land - no littering, etc. "

+1000, For heavens sake, treat the area around public waters over a private bed better than you would treat your own property. Do not give the opposition any ammunition for them to use in future legislative battles that may occur.


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## Catherder (Aug 2, 2008)

We've already talked about the subject below some this morning, but I received this from the USAC this afternoon and it is worth posting up.

This morning, we announced that access to Utah's river and streams has been restored. While we wait for the State to comply with this ruling and update its enforcement policies, we want to remind our membership that our actions from here forward must be above reproach.

We have no room for error here. Do not be the person that undoes all we've worked for.

Be respectful of private property and property owners.

Always pick up trash when you see it.

Use best angling practices to care for the fish.

If ordered out of a river or stream, don't argue about your rights with the landowner but try and calmly ask for the name and telephone number of the landowner and record the date, time and location where you were ordered out. Leave by whatever route the landowner suggets/demands. Promptly report all information regarding your confrontation, ideally in writing, to the DWR's enforcement division, and please provide a copy to USAC.

If the situation gets out of hand and / or you are threatened or assulted, contact the local law enforcement immediately by dialing 911.

Finally, remember that this ruling does not authorize you to cross private property in order to reach the stream bed. You may only gain access from a public access point, easement, or right of way.

For clarification, we encourage you to contact the DWR: http://wildlife.utah.gov/about-us/contact-us.html

A full copy of the ruling can be found here:
http://utahstreamaccess.org/wp-cont...100500558-Ruling-Order-and-Final-Judgment.pdf

Board of Directors
Utah Steam Access Coalition
[email protected] 
www.utahstreamaccess.org


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## Kwalk3 (Jun 21, 2012)

Definitely a good reminder to all of us out there.


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## Utmuddguy (Aug 25, 2013)

With the previous Supreme Court decision I doubt the appeal is even granted writ


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## Lonetree (Dec 4, 2010)

"This is a classic case of a handful of greedy fly fishermen getting too greedy,"--Don Peay 

The law has been "fixed", but not the people that brought us HB141. But I am certain that "fixed" is the proper procedure to be called for......


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## Vanilla (Dec 11, 2009)

This is a long time coming. When I first heard the news, I couldn't help getting a little emotional. There has been a lot of people that put a lot of time, energy, and resources into this, going all the way back to the Conatsers and their legal counsel Gerald Nielsen and Rob Hughes. I couldn't be more happy to declare this victory. How sweet it is! 

The case will get appealed. We are likely multiple years away from a 'final' ruling. I don't believe the appellate court will overturn this. I have not read the opinion yet, but I did the research 5, 6 and 7 years ago and knew how this would turn out. I expect this will get some attention in the legislature this coming session.


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## brendo (Sep 10, 2013)

kinda sucks that the picture that deseret news is using to cover this is a guy trespassing to get to public lands. Come on guys!! Do not abuse all the hard work these guys have put in. Use your head and be respectful of the land owners.


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