Below is the abstract for “Public Ownership, Public Rights: Recreational Stream Access Decisions in the Mountain West,” available for download on SSRN.
Stream access disputes involve a clash of public and private rights. Boaters and anglers often view streams as public resources that they can float or fish so long as they can reach them without crossing private land; many private landowners view streams flowing through their land as part of their property, from which they can exclude the public. Many such disputes have been litigated, forcing courts to decide whether state law provides a right of public access to streams crossing private land. This article examines cases in the Mountain West, where six supreme courts have made decisions on recreational access. Five these courts have recognized a “right to float” under state law, based primarily on constitutional or statutory language declaring that water is owned by the public, or by the state. This article examines the Mountain West stream access cases, analyzes the key legal factors involved in these decisions, and concludes with brief observations on public waters and public uses.