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Deseret News
FILE: Anglers fish the Provo River below the Jordanelle Reservoir on Monday, Sept. 21, 2009, near Heber, Utah.

SALT LAKE CITY — Utah Supreme Court justices are weighing tough issues of public right of access to waterways, the rights of private property owners and what makes a river or stream "navigable."

Oral arguments in a pair of cases were heard Monday by the state's high court, with justices being asked to wade into the fray over stream access and the constitutionality of a state law.

The law, adopted in 2010 by the Utah Legislature, was successfully challenged by the Utah Stream Access Coalition for eliminating access to 2,700 miles — or 43 percent — of the state's rivers and streams.

The state and private property owners appealed.

On Monday, justices wondered over the state's position that private property interests trump access to particular waterways, especially under a hypothetical scenario in which 1,000 miles of a prime fishing river was only accessible by private land.

Justice Deno Himonas asked if that river, which represented 90 percent of the state's fishable waters, would be off-limits, according to the state's position.

"You can't float it, you got to walk on it," he stressed to attorneys, pressing them for their position.

"In this world under HB141 as it exists today, no, you can't access this water. That was the determination of the Legislature," said Stanford Purser, with the Utah Attorney General's Office.

The questioning is at the heart of the case that pits public right of access to "navigable" streams and waterways against the rights of private property owners with those rivers or streams that happen to cross their property.

In response to a 2008 Utah Supreme Court decision in which justices held that the public easement to water exists regardless of who owns the stream bed — even if it is private property — Utah lawmakers adopted a new law tightening access.

That law defined navigable waterways and required anglers and others to get permission of the property owner if they were accessing water on private property.

Proponents of the restrictions argued that those owners have a right to be secure in their investment — otherwise it represented a "taking" without compensation.

One case before the court involves property owners along a 1-mile stretch of the Weber River who were told to take down no trespassing signs on their land. The owners, according to a district court ruling, did not have the right to restrict access, even though they had paid property taxes on the streambed.

Right of recreational access for public purpose to waterways hinges on what constitutes a "navigable" waterway. In the case of the Weber River, state attorneys argued that stretch was not considered navigable, even though it had been historically used to float logs and in support of commerce.

The Utah Stream Access Coalition argued that the 2010 law was applied too broadly and cut off access to a resource that is held in trust for the public.

A coalition of private property advocates, including the Utah Farm Bureau, insisted the district court wrongly interpreted the scope of the 2010 law.

Chris Barkey, director of the Utah Stream Access Coalition, said he's encouraged by the court hearings Monday.

"I think it went very well because of where the justices went with their dialogue with attorneys on both sides," he said. "I believe they are narrowed in on the appropriate legal questions."

The coalition and others involved in the issue have been in discussions with lawmakers to arrive at a legislative fix, but that is likely on hold pending a ruling from the Utah Supreme Court.

Justices took the matter under advisement and will issue a decision later.