More Dogs on Main Street
Every now and then something comes out of the blue, hits like a lightning bolt, and rearranges life without warning. This week was one of those. The Utah Supreme Court ruled in a case called Conaster v. Johnson that navigable waterways in Utah are now subject to a public easement to use the water itself and the bed of the river or lake for recreation purposes. Without warning, my front yard just became a public park.
The decision puts Utah in the same position as many other Western states which have held that there is public access within the riverbeds. In fact, Utah had ruled back in 1982 that the public had the right to float on water across private land, but didn’t decide whether the right to float included the right to touch bottom. The new case makes it clear that the public rights on rivers includes the right to walk on the bottom of the river to fish. In the fine print, it makes it clear that this is limited to the riverbed, not the banks, and that fishermen have no right to walk on the private land abutting the river. We all know how well that will work.
After spending 25 years as a trail advocate and pushing for recreational access, I have to admit that the ruling is probably in the public interest overall, and probably a good thing. A friend who is a serious fisherman said the mood at the fly shop was something like the French Revolution and the storming of the Bastille. Only in this case, the Bastille is places like Victory Ranch. There was a group getting ready to go out and make a full exercise of its newly found right to fish the previously private section of the Provo River through Victory Ranch, near Francis. One can only imagine how that affects the marketing of the project, which has emphasized the private river access as one of the reasons to pay for a lot and membership there. Now the great unwashed are welcome too.
As a landowner trying to operate a ranch, it’s hard to get enthusiastic about having a bunch of uninvited guests on the property. I think fishermen have, through the years, assumed that the reason private land was posted had something to do with the landowner trying to hoard all that fishing for himself. I don’t think that’s the case. In at least a lifetime on our property, there has been darn little fishing. We’ve posted the property because it is a business, and having a bunch of strangers wandering around in the midst of the business is as impractical for a ranch as it is for a retailer. The fly shop locks its doors at night because it doesn’t want people roaming around in the store. We posted the ranch for the same reason.
Cattle are grouped in different pastures for reasons ranging from management of the grazing to keeping the right cows with the right bulls. Having people wandering around the property, inevitably leaving gates open, or having their dogs running amok and pushing cattle through fences, is about as welcome as somebody turning a dozen toddlers loose in a China shop. "But we’re just fishing" is the usual refrain. Somehow "just fishing" seems to include leaving gates open, mashing down fences so they are easier to climb over, letting the dogs run the livestock, and dumping a pile of garbage along the way.
Individually, fishermen are friends and neighbors. But the masses are asses. Utah’s sportsmen are, as a group, slobs. All you need to confirm that is take a look at the parking areas where people now park to access the river for fishing. Enough of the fishing population seems to think that it’s OK to dump a pile of beer cans out on the side of the road that the parking areas are garbage dumps. Certainly it’s not everybody. But it’s enough that fishing and littering seem to be part of the same activity. I’ve spent a fair amount of time traveling in places like Montana and Idaho, and somehow they have learned how to carry a beer can back to the car. Why Utah’s fishermen can’t learn that is something of a mystery to me. A cooler with a 24-pack and ice isn’t too heavy to carry a mile downstream, but an empty can is apparently too heavy to carry back to the cooler when going for a refill.
The Supreme Court’s ruling isn’t a model of clarity. It doesn’t really say what water courses are now public. Does it mean that Mill Creek through Salt Lake is now open to the public, despite crossing through a thousand backyards? What about the artificial pond the transplanted Californian built in the front yard of his ranchette? Which state agency do I call to get the garbage picked up?
Other states have defined the public access by statutes that attempt to balance out the interests of the farmers and ranchers whose property abuts the rivers, the fishermen, and people whose houses are along the streams. The Utah Legislature will probably deal with the issue. It might be great theater watching the legislature, with its extreme views of protecting private property, try to balance that against the powerful hunting and fishing lobby. It’s hard to expect much common sense there.
So in the end, I suppose I will have to adjust to the fishermen peeing in the front yard, blocking the driveway, and leaving gates open so the cattle get out. Maybe I’ll be surprised and find that there is an ethic of respecting private property among fishermen, and they will clean up after themselves (and others) and not disrupt things unnecessarily. Among the neighbors who already fish up and down the river through my property, there is a reasonable attempt to not interfere with the operation of my business.
It’s possible. But probably not the way to bet.
Tom Clyde served as Park City attorney in the 1980s and is the author of "More Dogs On Main Street." He has been a columnist at The Park Record for nearly 20 years.
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