January 12, 2023
By Cullen Battle
The bill should have passed easily. Introduced in the 2022 session of the Utah Legislature, House Bill 129 would have directed the Utah Department of Natural Resources to identify which rivers in Utah are navigable and open to the public for fishing and boating. The bill did not set any new criteria for public access. It merely directed the agency to apply a centuries-old navigability standard, one recognized in Utah and in every other state. That the bill failed—it did not even make it out of committee—is not just a testament to the power of the landowner lobby in Utah. it reveals much about present-day problems with stream access across the U.S.
Navigability is a misunderstood and often criticized concept, yet it remains the only basis for securing public access to waters flowing through private lands in most states. As used here, “navigability” refers to the standard that arose under 19th century federal law. It holds that if a river was an actual or potential highway of commerce at statehood, the public—not the adjoining landowners—forever owns the streambed. This is often referred to as the “navigability-for-title” test.
A few states have developed their own navigability standards, some for the purpose of allowing public recreational use, but none resulting in the public ownership of the streambed. These navigability tests have different consequences, and all have different elements of proof.
For example, only the navigability-for-title test requires proof of navigability “at statehood.” To find this element, you have to look for evidence of commercial use on a particular river when your state became a state. In Utah that means 1896. The farther east you go, the farther back you have to look. This can be difficult because a river used only for recreation today may have been buzzing with commercial activity in the 19th century. Conversely, a river today might support a commercial use (such as guided fishing trips) that didn’t exist 150 years ago. But figuring out navigability at statehood is worth the effort because the resulting public ownership of the streambed gives people unlimited rights to use the river. Unlike many of the individual state navigability standards, there is no question that the public can anchor and wade and use the streambed itself, as opposed to merely passing along the river in a boat without ever touching the streambed.
Another benefit of navigable-for-title waters is that they are protected from state officials and legislatures, who are all too often willing to sacrifice public rights at the behest of private property interests.
The course of the stream access struggle in Utah illustrates the importance of these principles. Until recently, Utah was one of the few states allowing public access to all rivers, regardless of navigability. This was based on the fact that the public owns the water, and even though a non-navigable streambed may be privately owned, Utah court decisions recognized a common law easement that allowed the public to wade, anchor, and otherwise touch the streambed when using the river. But in 2010, at the behest of the real estate lobby, the Utah legislature passed a law eliminating that easement. Due to the nature of Utah’s rivers, this effectively curtailed public use on over 2,700 miles of fishable waters. Since then, the law has confined the public to navigable rivers and rivers flowing through public lands—rivers where the public owns the streambeds.
As in most states, there is no comprehensive list of navigable waters in Utah. When the access restriction law passed in 2010, the only recognized navigable waters were ones the state had adjudicated for the purpose of claiming oil and gas royalties, or gaining an advantage over the federal government in the management of public lands. Utah has no history of pursuing navigability adjudications for the purpose of securing public access to rivers flowing through private lands. This omission is critical because in Utah, as in most states, the burden is on the person using the river to prove it is navigable. In other words, rivers are presumed to be non-navigable, and this allows landowners who claim ownership of the streambed to indiscriminately prosecute members of the public for using Utah waters that were once open to them.
To break the logjam, the Utah Stream Access Coalition (utahstreamaccess.org) brought a lawsuit in 2011 to declare a section of the Weber River navigable and open to public use. The Weber is one of Utah’s premier trout streams. Flowing from the Uinta Mountains to the Great Salt Lake, it has provided sustenance and sport to Utahns and out-of-state visitors since the latter half of the 19th century. Its entire fishable length passes through private lands, and as soon as the new law passed in 2010, landowners posted no-trespassing signs shutting people out of waters they had fished for more than five generations.
Apart from reopening access to a fine trout stream, the Coalition had two strategic objectives in bringing a navigability case on the Weber River. The first was to establish that statehood-era log drives, a common practice on the Weber and many other Utah rivers, are sufficient to prove that a river was a highway of commerce. The Coalition succeeded in this objective in 2017 when the Utah Supreme Court affirmed the river’s navigability based exclusively on such evidence in Utah Stream Access Coalition v. Orange Street Development, et al.
The other objective was to prompt the state to apply the precedent of the Weber River case to other rivers in Utah with similar evidence of statehood-era log drives. This is important because private parties can’t afford to litigate navigability stream by stream. Even though the Coalition’s lawyers worked pro bono (free of charge), expert fees and other costs of court in the Weber case approached $100,000 and were paid through the contributions of members and supporters. Doing this on every navigable river in Utah is not sustainable.
Despite receiving reams of navigability evidence from the Coalition in the five years since the Weber River navigability ruling, the agency responsible for the streambeds of Utah’s navigable waters has not moved one inch toward identifying other rivers that are navigable under the precedent established in the Weber case. The leadership of the Utah Department of Natural Resources appears to believe that it is not their role to represent the public or to identify which rivers are navigable.
This prompted the Coalition to turn to HB 129. The bill’s sponsor, Rep. Tim Hawkes, is a former state director of Trout Unlimited, a graduate of Columbia Law School, and the Republican chair of the Rules Committee of the Utah House of Representatives. The bill was patterned after an Oregon law in place since 1995 (ORS 274.400-424), which authorizes Oregon’s State Land Board to administratively determine navigability to ensure ongoing public access to a river until title to the streambed can be adjudicated in court. Using this process, the State Land Board has protected the public’s right of access to (among others) the Rogue, North Umpqua, John Day, and Klamath Rivers—iconic salmon and steelhead fishing waters.
HB 129 was introduced and moved immediately to Rep. Hawkes’s Rules Committee. Everything seemed in place for easy passage of the bill, but the landowner and real estate lobbies circled their wagons, asserting that a single bureaucrat (the agency’s director) should not have the power to make decisions affecting their properties. In fact, what they really wanted to protect was the ability of a single law enforcement officer to deny the entire public the right to use an ostensibly navigable river. Word came down that legislative leadership opposed the bill, and it died. It did not even make it out of Rules Committee.
And so, Oregon remains the only state that has a streamlined administrative process for determining navigable waters and the public’s right to use them. But even in Oregon that process has been slow, and the results are far from complete. Including the streams mentioned above, the State Land Board has identified only seven navigable rivers in Oregon since it began its work. As anyone knows who has spent time on Oregon’s rivers, or is familiar with the history of its logging industry, that list is a but a small tip of a very large iceberg.
Elsewhere in the West, the stalemate continues. Officials in Colorado and Wyoming claim their states have no navigable rivers, even though 19th century log drives commonly occurred on them. In Colorado, a courageous octogenarian named Roger Hill is challenging his state’s position and is seeking a judicial declaration that the Arkansas River is navigable. But the road for Hill has been rocky, with the state and landowner groups throwing procedural obstacles in his path at every turn. After four years of litigation, Hill still hasn’t gotten a chance to present his navigability case to the court (Hill v. Warsewa Colo. Ct. App. No. 20CA17800). If he does get that chance, Colorado may well find out it has navigable rivers after all.
As grim as all this seems, a new light has appeared on the horizon. Pennsylvania’s navigability and stream access laws are similar to Utah’s and Oregon’s. Like Oregon’s, Pennsylvania’s public lands agencies have been willing to go to bat for the public and litigate the navigability of streams closed by over-aggressive landowners. In 1999 and 2007 the state brought successful cases on the Lehigh and Little Juniata rivers. But Pennsylvanians have remained in the dark as to their rights on other, unadjudicated, rivers.
The Pennsylvania Department of Conservation and Natural Resources recently moved to fill this void. Using GIS tools, the agency has published a map of streams in Pennsylvania that have physical characteristics capable of supporting the kinds of waterborne commerce known to have occurred in Pennsylvania in the 18th and 19th centuries. In other words, streams used as “highways of commerce.” A glance at the new map reveals what has been accomplished—the identification of hundreds of public streambeds, only a handful of which had previously been adjudicated or formally declared as navigable waters.
An interactive version of this map is available at https://www.gis.dcnr.state.pa.us/publicstreambeds/. It comes with an explanation that “publicly owned streambeds have been compiled by the Commonwealth over time from various sources,” and that their identification “is based upon information believed to be reliable and persuasive evidence of such ownership” but “is not intended to be a final determination that the waterway is navigable under state or federal law.”
The new map flips the narrative to a presumption in favor of public access. Law enforcement authorities should no longer be able to ticket or prosecute users of the identified streams simply because landowners claim the streambed as their private property. Landowners can still go to court to establish their ownership of the streambed if they believe the stream does not meet navigability standards. But it is far more reasonable to keep open a stretch of water based on objective physical criteria, than to keep it closed simply because landowners believe they own the streambed and state authorities haven’t gotten around to litigating it.
What to make of it all? With recent court decisions around the country discrediting old notions that navigable rivers are only those capable of carrying steamships and river barges, states must get to work identifying rivers that meet the navigability test in its full dimensions. They need to recognize that not long ago in our history, rivers—not roads—were America’s primary highways of commerce, and the modes of transportation ranged from high-tech steamships on large rivers to low-tech log drives on rivers of all sizes. With so much at stake for modern-day outdoor recreation, it is inexcusable for states to ignore their history and pretend that navigable waters do not exist. Oregon and Pennsylvania have shown the way to get the job done. It’s time for other states to follow.
Cullen Battle is a retired attorney who led the Utah Stream Access Coalition (USAC) to a decisive win on the issue of the navigability of the Upper Weber River in Utah in 2017. HB129 was his brainchild and a logical extension of the decision handed down by the Utah Supreme Court in USAC v. Orange Street Development.