This is a long history, I'll do my best to be succinct. Conatser was decided in 2008, I believe. It simply asked the question if the incidental touching of privately owned beds to fish or otherwise recreate on public water was legal and part of using the water. The answer to that was yes, the incidental touching was within the public?s right to utilize public water following over private stream beds. It involved the Weber River, but had nothing to do with navigability. It simply interpreted state code that declares all water owned by the state, and therefore public water.
Rep Ben Ferry ran a bill in 2009 to overturn Conatser legislatively, but HB 187 was killed that year on the House floor. Ben Ferry was voted out at the convention the following year on this issue alone as anglers assembled enough delegates in his area to remove him from office.
HB 141 was a legislative reaction to Conatser the next year (2010) stating that public ownership of water gave the public no right to utilize that water. It came after all interested parties had spent a year working out a compromise under the direction of Rep Lorie Fowlke. On the eve of the start of the legislative session, Rep Kay McIff came out with HB 141 and the landowners all walked away from the table on promises that the former judge was a water law expert, and they had the votes to screw the fishermen.
The Utah Stream Access Coalition (USAC) was formed and the organization assembled a legal team that over the course of the next few years filed two separate, and mostly unrelated lawsuits.
One lawsuit was filed on a one mile stretch of the Weber River stating that based upon historical use for commerce at the time of statehood, that this section was ?navigable.? If a body of water meets this test, the state must retain title to the streambed and it cannot be privately owned under federal law. Coincidentally, I personally told multiple landowners on this very section back in 2010 and 2011 that they should work out the compromise the anglers were trying to work out because if we filed a navigability lawsuit, they'd lose and would not only lose the sbility to keep anglers out, they'll lose title as well. They didn't listen to me and the many others informing them of this, and wouldn't you know, the Utah Supreme Court agreed. The one mile section of the Weber is navigable. Therefore, in fact, basically the entire Weber is navigable. Stay tuned, you'll hear more information about this soon enough. Those wealthy, influential landowners should have listened 8 years ago...
This is the case that could potentially be influenced by the Colorado case. The Weber case was filed in state court. State courts were asked to interpret federal law, which they are allowed to do. However, if the federal courts come to a different conclusion on the same issue of federal law, the federal court decision will trump (no pun intended) the state court's decisionon that issue. The Colorado case, I believe, is basically asking the federal court to rule the same way based upon tie drives and log drives. If the federal courts ruled that this does not meet the commerce at time of statehood requirement, it could impact the recent Utah decision on the Weber River. But the federal courts won't rule the other way. That would be a shocking decision if they did. Either way, we're probably many years away from that one being resolved.
The other case filed by USAC was filed against the state and the owners of Victory Ranch on the upper Provo. This case challenged the constitutionality of HB 141, stating (in very simple terms) that under the Utah constitution and due to the public trust doctrine, the state could not pass a law keeping the public from utilizing publicly owned water. The district court ruled in USAC?s favor, and the Supreme Court took jurisdiction of it and we're now over a year since oral arguments. A decision should be forthcoming any time. This case has nothing to do with navigability, and therefore will not be impacted by any decision out of the Colorado case. The Provo case is strictly about Utah code and the Utah constitution.
I know there is a lot of talk about navigability going on, and that is why Bird is so confused on the procedural posture of this situation. But this talk is just about what FUTURE cases will come based upon the ruling in the Weber case. Can anyone think of any other rivers in the state where log drives were done for construction and for the railroad at the time of statehood? Hint: there are a lot of them! And many of these rivers have high amounts of private property adjacent to them. It would behoovd these landowners to be wise about how much they dig in their heels on this. Learn a lesson from your friends on the Weber River. Just my opinion...