Two access decisions define the second half of 2008.

For those concerned with western water access issues, and notably those falling on the "pro-access" side of the debate, the summer of 2008 was an interesting time.

First, the Utah Supreme Court ruled in Conaster v. Johnson, 2008 UT 48, that the general public has the right to float, fish, hunt, and otherwise lawfully use Utah's rivers. When engaging in such legal recreational activities, moreover, the public may touch the bed of the river in which they are recreating. Specifically, the Conaster Court stated:

We hold that the scope of the easement provides the public the right to float, hunt, fish, and participate in all lawful activities that utilize the water. We further hold that the public has the right to touch privately owned beds of state waters in ways incidental to all recreational rights provided for in the easement, so long as they do so reasonably and cause no unnecessary injury to the landowner.

Id. at ¶ 30.

To my non-Utah-attorney understanding, this marks a large departure from prior holdings of Utah's courts. Prior decisions had held that while the public was free to use all rivers and their waters in Utah, they couldn't touch (other than through incidental contact) the river bed if it was "privately owned." As such, you could float a river, but you couldn't get out and wade if the stretch you were over was privately owned.

The Conaster decision appears, therefore, to be a significant pro-access decision, and one which should aid fisherman who prefer to wade or otherwise do not have regular access to a drift boat.

The second major access decision was handed out this month, and comes from the Montana Supreme Court. That decision, Bitterroot River Protective Ass'n v. Bitterroot Conservation District, 2008 MT 377, is lengthy (54 pages), and addresses multiple issues. Distilled to its essence (and again, with the understanding that I am not a Montana attorney) the decision is important from a pro-access standpoint because it overturned an appellate court's narrow definition of what constituted a "natural" waterway under Montana's Stream Access Law ("SAL"), as that definition concerned the Mitchell Slough.

As many know, the Mitchell Slough has been an access issue flashpoint in Montana. The Slough was heavily restored, partially at the hands of well known and monied individuals such as Huey Lewis and other prominent businesspeople. After restoring the Slough, however, the landowners closed off access, and secured a declaration that the water was not "natural" and therefore did not fall under Montana's stream access laws (effectively prohibiting the general public from fishing on the now-restored Slough). This case was brought challenging the designation of the water as not "natural," and as falling outside the scope of existing access laws.

Whereas the lower appellate court had held that a dictionary definition of "natural" applied when reviewing which waterways fall under the SAL, the Montana Supreme Court found that:

Under a technical or scientific definition of natural, recreational access under the SAL could be drastically limited. We thus conclude that the District Court’s dictionary-based definition, which essentially requires a pristine river unaffected by humans in order to be deemed "natural," results in an absurdity: for many Montana waters, the SAL would prohibit the very access it was enacted to provide.

...

Whether man has impacted a waterway is certainly an appropriate consideration, but a more appropriate statement of the issue focuses on how and to what extent man has impacted the waterway. Evidence of the extent of man’s efforts must be considered in conjunction with all other circumstances in a fact-driven inquiry.

Id. at ¶¶ 72-73.

As such, the Court reveiwed a long litany of historical, statistical, stream flow, mapping, and other such data dating back over 100 years. Based up its review, the Court concluded, as a matter of law, that although man had certainly altered the Mitchell Slough, such alterations were not sufficient to cause the Slough to lose its status as a "natural" waterway. As a natural waterway, the Slough was subject to the SAL, and the public was entitled to access.

The decision is important from a pro-access standpoint because it establishes a broad definition and evaluation standard for use when determining which waters within Montana are "natural," and subject to Montana's SAL.

TU - Montana was an active participant in this lawsuit (acting as a "friend of the court"), standing on the pro-access side of things.