Utah Adventure Journal

HB 141 Restores Property Rights

By Randy Parker

According to Adam Smith, author of The Wealth of Nations, the expectation of profit from improving one’s stock of capital rests on private property rights. It is a belief central to capitalism that private property rights encourage the property holders to develop property, generate wealth and efficiently allocate resources.

Since the 2008 Supreme Court’s expansive Conatser ruling, the Utah Legislature has faced the task of balancing recreation rights while protecting Utah’s long established private property rights. For nearly two years landowners have been looking to the legislature for some remedy to a court decree that has led to trespass, escalating disregard for property rights and declining property values.

Under Utah’s Constitution, creating the laws of the state is explicitly the responsibility of the elected representatives of the people, not appointed judges. In Conatser, the Court usurped legislative authority when they declared “we established our own rule” providing the public a judicially defined right to “float, hunt, fish and participate in any legal activity when utilizing the water.” The Court ignored the fact that Utah landowners, for generations, have paid and continue to pay taxes on the property these streams cross.

The result was a shock to landowners whose land has been protected for more than 100 years. In testimony before the legislature, landowner after landowner provided examples of abuse of their property after the High Court opened recreational access to Utah’s privately owned streambeds. One landowner documented hundreds of trespassers climbing a six-foot gate to cross his private bridge. Tired of finding human waste behind every bush, at personal expense the rancher was compelled to bring in portable toilets.

John Adams, second president of the United States warned, “The moment the idea is admitted into society that property is not as sacred as the laws of God and there is no force of law and public justice to protect it, anarchy and tyranny commence.”

Advocates for entitlement to Utah’s privately owned streambeds, against the will of landowners, cite the Magna Carta, the Public Trust Doctrine and even Brigham Young in their efforts to circumvent Utah’s Constitution and protection of the “inalienable” right to private property, second only to the rights of life and liberty.

House Bill 141 “Recreational Use of Public Water on Private Land” returns Constitutional protections to landowners while recognizing legitimate recreational easements do exist on some non-navigable Utah streams based on historic use. Similar to Utah’s current statutes establishing road and irrigation easements, HB 141 incorporates reasonable and sound principles for establishing recreational easements on Utah’s non-navigable, privately owned streambeds.

Article I Section 22 of the Utah Constitution says, “Private Property shall not be taken or damaged for public use without just compensation.”

The Supreme Court noted that their decision places a burden on landowners when they admonished anglers and other recreation interests that their injury to the private property should be no “greater than necessary for the effective public enjoyment” of the easement. The result is clear; the property owners are expected to absorb some undefined level of public injury related to the court decreed recreational easement. This interpretation is difficult to understand and even more difficult to defend under the “no damage” provisions of Utah’s Constitution.

More than 75 percent of Utah is government-owned and open to public access. More than 17,000 miles of streams are open and available for recreating. In this open access setting, policy makers must be careful of excessive entitlement and to jealously defend Constitutional protections on our limited private property. There are around 5,000 miles of non-navigable streams crossing Utah’s private lands, farms and ranches. Many of these waters do not even sustain fish. On the other hand, there are some great fisheries on private property, because landowners at personal expense have developed fish habitat.

The court noted that the water belongs to the citizens; but the court failed to recognize that farmers, ranchers, municipalities and others have obtained their water rights in the marketplace. Over time, they have had to purchase their water rights and prove that they can put their water to beneficial use. Beneficial use is defined in statute as irrigation, livestock water, industrial, mining, milling, manufacturing, domestic and culinary. There is no reference to recreation.

There are market-based solutions like Walk in Access and the Cooperative Wildlife Management Units (CWMU) program that provides access to private property. Farmers, ranchers and other landowners, who invest in wildlife habitat, including streambeds for fishing, should be able to sell that opportunity. HB 141 offered by Representative Kay McIff is a balanced approach to this complex property rights/recreation issue. HB 141 provides a broader range of economic opportunities for private property owners and sportsmen providing incentives for healthy streams and may ultimately help preserve a new generation of farmers and ranchers.

To anglers, their relationship with landowners and access to healthy waterways is critical. Landowners must view their property and the wildlife it supports as an asset, not a liability. The best way to show respect for private property and to access private streambeds is to ask the owner’s permission.

Thanks to the Legislature and Governor for embracing the Constitution and protecting private property rights.

Randy Parker is the CEO of the Utah Farm Bureau

HB 141 Restricts Recreation Opportunities Unfairly

By Dan Hill

HB-141 will, no doubt, always be a subject with two polarized sides. While the points made by those wanting exclusive access to rivers on their property can readily be seen, one cannot avoid the history and present state of jurisprudence on this topic in the U.S. There are clear federal laws regarding the rights of citizens to access waterways, and while some discretion is given to the states, Utah, historically has gone beyond the bounds of what national lawmakers intended. Much information is available to those wishing to educate themselves on this topic. As a primer course, I recommend a treatise written by the National Organization for Rivers. (www.nationalrivers.org/us-law-public.htm)

Historically, rivers were nearly always considered public property “common to all” and protected as such. Land owners with streams on their property do pay taxes on that land taken up by the river, and use this fact to demand sole proprietorship of the resource as a reward for the cost. But desirable features, whether trees, scenic views, or water always increase the purchase price and taxes of land. Look online, and one will see that a single acre of river-front property is many times more expensive than a score of acres out on a sage field. Why is this? Because there is an inherent benefit in such a desirable piece of property. Otherwise why own land with a waterway? One can water cattle or crops just as easily without a stream. Stream owners do receive real benefits for their money, even without the authority to kick others out who would only wish to respectfully visit. Owners also receive benefits which are not paid for. For instance, most streams in Utah containing browns, rainbows, brook trout and most other species, were originally stocked by wildlife officials at taxpayer expense. Not only is the public water held hostage, but all game fish existing behind “No Trespassing” signs were put there by the public for the exclusive use of that owner.

Regarding references to the rights we have to own things, we have been led to believe that the “Right to Property” is some universal and unlimited principle which has always been, and must always remain unchanged. This is a falsehood. Does anyone recall that the right to own property once included human beings? There are, and always have been limits- morally and legally to what a person can own. A land owner doesn’t inherently own the minerals under his land, nor does he own the air space above his land. Utah’s legal code on ownership of water is similar to other states in this nation. It claims to hold the water of the state in trust for its citizens. That means we all collectively own the water here in Utah.

Now consider this example. If a man owns a parcel of property, and I, a wealthy transplant from California, move in and buy up all the lots surrounding him, is it legal for me to deny him access to his land? To get to it, he would have to trespass across my property! The answer, of course, is no. There is an inferred easement to allow the person access to that which is his. Will someone explain where the principle of accessing water, which is our common property, is different? Land owners with water shares do have a right to use that water for designated purposes, but only their share of it. What’s more, a fly fisherman isn’t competing for the consumption of that resource; he is merely accessing the stream for a temporary recreational activity. If he behaves in a sportsmanlike way, nothing is harmed and in fact, if he’s like me, he usually leaves with a sack of garbage picked up along his route.

Damage to property is one of the main claims which land owners made in hearings leading up to this new law.
Let’s talk about stewardship. It has been suggested that a land owner has a personal stake in keeping stream beds in premium condition. This is, most often, false. A land owner’s primary concerns are those activities which produce income, and rightfully so. What land owner depends on his river for his income? Sure he may water with it, but his money is usually vested in cattle, crops, or future development. If any private land owner has a regular routine of improvement of stream beds, he is the exception to the overwhelming rule. This is undeniable. One only needs to drive through rural areas to see old farm equipment, barbed wire, rail road ties and tires left to decay on river banks, and shore lines turned to muddy wallows, covered with cow pies. Even when purchased for aesthetic beauty, streams are mishandled by ignorant land owners. Observe private sections of most creeks in developed areas. You’ll see cultured lawns and artificially created rock banks running to the water’s edge in front of million dollar homes. Beautiful, no doubt, but hardly beneficial wildlife habitat. Closer to home are places like East Canyon and Lambs Canyon creek, where private golf courses, development projects, and the occasional chemical spill have several times in years past, sterilized large sections of the streams- all this behind private property signs.

Now consider rivers like the Provo, Green, and Weber, open sections of the Sevier, Currant Creek, the Duchesne, Strawberry Pinnacles, and many others. These are rivers which have a high amount of traffic and are fished heavily. Yet somehow they remain what they have always been- clean and productive fisheries. In recent decades, more and more sportsmen have become educated and keenly aware of their responsibility to protect these streams for their own benefit. If there is anyone who has a vested interest in keeping waterways vibrant and healthy, it is us. True, there are exceptions who exhibit destructive behaviors, but the solution is in education and enforcement of laws on littering, destruction of property, bag limits, etc., not restriction of use. We don’t close public roads because a few idiots drink and drive.

HB-141 has, and will create an “us vs. them” mentality as more and more land along waterways is purchased, and transferred forever from public to private hands. We had an opportunity to show that we could be responsible caretakers of our collectively owned water in Utah. The chance is now taken from us by an influential minority. Governor, you may stand with powerful people on your side of the table, but be aware, the majority of Utah citizens stands on the other side.

Dan Hill is an avid outdoorsman and a regular contributor to OUAJ. He recently wrote about Fishing Utah’s Small Streams in our spring 2010 issue.