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Thursday, March 11, 2010Senator Stowell on Streambed AccessBy Dennis E. Stowell
Senator, District 28 It is important that we bring the escalating confrontations between property owners and recreationists to a close. SB 141 affirms the right for a person to float or fish, while floating in public waters over private property. It also is designed to confirm the constitutional protection for private property owners. Recreationists should know that they can still gain access to areas of rivers on private property through a program run by the Division of Wildlife Resources (DWR) called the “Walk-in Access” program. This is how the Walk-in Access program works: The DWR can lease a tract of private land for hunting, trapping and/or fishing privileges for the use of public recreation. Those who travel on foot, hunters, anglers and wildlife watchers can enter and use the land without obtaining special permission or paying a separate fee. This partnership between the state and private landowners helps maintain important wildlife habitat on private lands and improves public access for wildlife-related recreation on private property. Fishers should also know that there is still access available on streams that flow through private lands without walk-in access. Where access has historically existed, anglers will be able to walk within three feet of the water on either bank, and are also able to port around obstacles. This bill is not meant to create dissonance between recreationists and private land owners. This bill is about ensuring that private property owners are receiving the constitutional protection for private properties. Thus making certain private property is not taken or damaged for public use without just compensation. Anglers are still welcome to enjoy the rivers and streams in the state of Utah but are expected to respect the rights that belong to those that own the property on which they use. To further help open private areas we have passed SB 281 – Public access to Stream Beds, Utah Waterways Task force. This task force will be made up of 12 legislators that will study, during the 2010 interim session, areas of the state which have conflicts between fishermen and landowners. The task force will hold public hearings to allow the landowners and fishermen testify about the conflicts in these areas. This process will help the legislature better understand how the problem may be solved. The task force will also address funding issues in regards to expanding the DWR Walk-in Access program, funding to permanently purchase access rights from landowners, and establishment of cooperative fishing management units (CFMU’S). Public Hearings for areas being studied will be announced on the Senate Site as they are scheduled. Please be involved.
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27 Comments:
I just have a question, if we are not granted access to a stream or river will my tax dollars still be spent to both maintain and stock that stream and if so how is that acceptable on any level? If the stream is not open to public access then it is my contention that the DWR should walk away from that stream and concentrate their efforts on those that all are able to enjoy. This is a common pracrtice in many states and if a land owner wants to have public funds used to maintain and improve his "property" then the respectful public, whose funds are being used, should have full access and if the right to access is abused then that individual should have his right revoked and a fine given. it is too bad that a few have caused this issue for all of us.
Senator Stowell writes:
"This bill is not meant to create dissonance between recreationists and private land owners. This bill is about ensuring that private property owners are receiving the constitutional protection for private properties. Thus making certain private property is not taken or damaged for public use without just compensation. Anglers are still welcome to enjoy the rivers and streams in the state of Utah but are expected to respect the rights that belong to those that own the property on which they use." (emphasis added)
My questions for Senator Stowell:
What about the rights that belong to THOSE THAT HAVE OWNED THE WATERS since at least 1914 (or at least used to prior to HB141S02's reinterpretation & desecration of Utah Code 73-1-1)?
What about the effective TAKING of property and rights away from the ORIGINAL OWNERS, and giving EXCLUSIVE rights to use and enjoy those waters to those that NEVER OWNED THEM BEFORE?
How is that fair Senator?
How is that fair to me, my children, and my children's children?
How is that NOT going to create dissonance between the people of Utah?
Herbert L. Ley III
Salt Lake County, UTAH
Sen Stowell,
Let me ask you one question.
You mentioned the DWR walk in access program, why should we have to pay to access what the courts have already deemed that we the people of Utah already own?
That is nothing but a waste of Tax payer dollars.
The people of Utah will prevail in this. HB141 will be challenged and defeated in the Courts!
My husband and I own property just above Kamas, and Beaver Creek runs alongside our yard. This is a neighborhood, with each family owning 1/2 to probably two acres of property, and homes. Some live there year round. It is all private property, and regulated by our association. We build and maintain the roads, etc. Others can drive 3 miles further up the canyon and be in the Uinta National Forest, and fish all they want to. But we still have people come in on our road and sometimes even walk into our front yards to fish the creek. We're sitting there watching tv and strangers are making themselves to home on our front lawn. Property owners should also have rights. If the government gets the money for selling the land to citizens, and also collects annual taxes and other fees from the property owners, the property owners should have the same rights and privileges as other property owners. If you want the land open to fishermen, hunters, campers, and other visitors, DON'T sell it to private citizens. We deserve the same protection you have in your home. How would you like it if a camper pulled into your driveway, and the family got out and set up a picnic in your back yard?
I want"just compensation" paid to the taxpayer for any section of stream in the state that is restricted to public use in ANY way! We (the public) OWN the stream, and transfering our public resources to private landowners is a "taking" of public property without compensation to the public.
Jefre Hicks
We need to respect the diminishing property rights in this state. Just the other night I was sitting down to diner with my family when I look out the window and what do I see? The usual crowd of trespassers onto my so-called easement. This is my property, why do they think they deserve access?
They ride their bikes and skateboards up and down my sidewalk - some are so blatant as to draw on it with chalk! I think it's unfair and unconstitutional for people to walk on my property like this.
No one questions that the public owns the waters of the State of Utah. This ownership was established by the Legislature in code in 1903 (public ownership is not established in the Utah Constitution, however). The same law establishing public ownership requires appropriation by the state before the public can use it's water. Just because the public owns the water, they cannot drill a well any where they wish; they must have a permit from the state. The public cannot water their livestock anywhere they want; they must have a certificate from the state. Public waters cannot be used for mining purposes without consent of the State. The public cannot install a hydroelectric plant (a non-consumable use as is fishing) without first notifying the state and getting their permission. It should be obvious that the Legislature can also control when and where the public waters can be accessed by the public for fishing purposes or any other use.
By 1895/96 when the Utah Constitution was written and adopted, many of the ranches had established their right to have private access to the public waters. Since then, the private landowners have paid taxes on their land, including the stream beds under non-navigable waters of the state, further establishing their right to private access. Article XVII Section 1 of the Utah Constitution states "All existing rights to the use of any of the waters in the state for any useful or beneficial purpose, are hereby recognized and confirmed." Does not this apply to the right for private access? The Utah Legislature just sent a strong message to the public that they believe there is a right to private access to the public waters of the state, and that the Legislature intends to "set the rules."
Are there streams and rivers where there is public access? Certainly! Those rights are also protected by the Utah Constitution section quoted above. The trick is to identify what portions of streams and rivers have private access and which have public access. There may not be total agreement between private landowners and fishermen about which have public and which have private access.
The purpose of HB 141 is to set up a method to differentiate between them. It will be done through a court action if other methods do not work. HB 141 sets a one year cooling off period to identify the conflicts and see if there are other ways to settle the conflicts. SB281 which I carried the last day of the session sets up a task force to identify the conflict areas and to take public input. The task force will be doing on the ground inspections of conflict areas and holding public hearings beginning in May.
I will be a co-chair of the task force. I welcome both landowners and fishermen to SUBMIT to me on this blog a DESCRIPTION of parts of streams or rivers they feel are in conflict.
I do want to emphasize that the Legislature expects both fishermen and landowners to be respectful of each other. The Legislature has returned access to the rivers and streams to pre-Conatser levels (2008) and we expect both Landowners and Fishermen to respect that decision. DWR officers will be enforcing both trespass laws and access to areas which had pre-2008 access.
We hope to see you at our Task Force meetings and will post locations and times on this blog.
There is no question in my mind that the Legislature can also limit the public's right to access their water for fishing purposes. There is also no question in my mind that by 1895 when the Utah Constitution was written, that some private landowners had established the right to use the public waters for fishing on their private lands. When the
Dennis -- where does HB141 have a "1 year cooling off period"? I read nowhere that this bill only lasts for 1 year. Did I miss something? Reading the bill, it goes into effect as soon as the Gov. signs it (or, as soon as he doesn't sign it).
I don't think you're going to get much response from anglers listing rivers and streams on this blog. You would be much better off contacting those people you have already heard from during this process either by phone or email.
Further, I'd like to propose that you include Lorie Fowlke on your task force. She has experience with this subject already. Heck, she's already spent an entire year working on this issue. She would be a great asset to both private land owners and the general public on this issue. Please consider using her while she is still available. As a member or your constituency who feels like you have gone against every request I've made so far, throw me a freakin' bone and put Fowlke on the task force!
Brett
Cedar City, UT
Here a few rivers to start looking at the conflict on
Provo top to bottom,
Weber Top to Bottom,
Ogden Top to Bottom,
Logan Top to Bottom,
Blacksmith Fork Top to Bottom,
Lake Fork Top to Bottom,
Rock Creek Top to Bottom,
Strawberry River Top to Bottom,
Duchesne River and forks Top to Bottom,
Currant Creek Top to Bottom,
Price River Top to Bottom,
Fremont Top to Bottom,
Beaver River Top to Bottom,
Bear and All forks Top to Bottom,
Chalk Creek Top to Bottom,
Lost Creek Top to Bottom,
Hobble Creek - all forks Top to Bottom, Cottonwood Creeks Top to Bottom, Diamond Fork Top to Bottom, Sevier River and all forks Top to Bottom,
Mammoth Creek Top to Bottom, Asay Creek Top to Bottom, Panguitch River Top to Bottom, Escalante Top to Bottom, White River Top to Bottom, San Rafael Top to Bottom,
Uinta Top to Bottom, Yellowstone Top to Bottom, Uinta Top to Bottom, Ashley Creek Top to Bottom, Henry's Fork Top to Bottom, Shingle Creek Top to Bottom, Beaver Creek Top to Bottom
American Fork Creek Top to Bottom, and Thistle Creek more to come later. Thanks for your help Senator we'll see you at the discussions.
Justin Grover,
Taylorsville
Anonymous said:
". But we still have people come in on our road and sometimes even walk into our front yards to fish the creek. We're sitting there watching tv and strangers are making themselves to home on our front lawn. Property owners should also have rights."
This is called trespassing. You should call the sheriff and those people should be prosecuted. There is a huge difference between staying with the ordinary high water mark, accessed by public access, and trespassing across someone's property. If you have anglers driving your private drive, walking across your front yard, and making themselves at home on your lawn, then those people need to be arrested. Don't confuse stream access with illegal trespassing!
Senator Stowell,
Every stretch of stream in this state that is public water flowing over private land is up for discussion. Every one, based upon a unanimous Supreme Court ruling. Also, based upon HB141, though, the bigger question is which of these streams have documented adverse use in the last ten years? The Provo below Deer Creek, yes, but there are virtually no others in this state. When you voted for this bill, had you requested a list of streams and rivers from Rep. McIff that could potentially meet this requirement? If so that piece of paper would be blank.
I listened to you during the discussion of HB141 in the Senate. You guys had some fun laughing about catching fish dragging you down stream as you emphasized that the floating provisions of this bill would not allow you to float a river that was consistently less shallow than you could stand up in. So, for the sake of argument, let's say a consistent depth of 4 ft for those short people in the world. Can you name a singe river/stream in this state that is public water over private land that has a consistent depth of four feet? I have asked this question of a number of people much more versed than I on Utah waterways and the answer is none. Can you name one?
I appreciate your work with the task force and I look forward to testifying at it. But it is, ultimately, a compete waste of time with HB141 as law. If you want the task force to mean ANYTHING, then you should request the Governor to veto HB141 and let the task do it's job.
John Weis
801-278-3847
With all due respect Senator Stowell, HB 141 and your proposals completely ignore the unanimous Supreme Court ruling. May I remind you that the judicial branch of government is ONE-THIRD of the government. Please do not ask the public to accept a government that includes only the legislative branch: your proposals are doing just that.
HB 141 is almost 100% favorable to land owners. There is nothing in your proposals and HB 141 that is even remotely reflective of the unanimous Supreme Court ruling. Going forward, I urge you to account for the Judicial branch of government, and not ignore the Supreme Court's ruling. The public WILL require this. That is the public's position and right.
I came from out of state every year to fly fish in the great state of Utah. I split my time and money between Utah and Idaho. Now, because of this law, Utah Congress assuming it has the ability to interpret the Utah Constitution, and thumb its collective nose at the Utah Supreme Court, I will be spending all of my recreation money in Idaho. I bring plenty of business and money that will now rest in the state to the north of Utah. I will also provide funding to campaign against those who voted for this unconstitutional bill.
Dear Senator Stonewell,
Thank you for your support of private property rights.
I think the point can be made that the unique history of Utah elevates property rights to a primary right over all others, hence Article #1 Section#1 in the constitution.
This state was founded by a people who had specifically had there property taken by the government and the mob. The special place that property rights have in this state is born of the actual experience of a people denied there right to hold and husband their private property.
We need to honor that which makes this a unique state.
I believe that John's comment above is extremely important and valid:
Please name a river that can be floated year-round without requiring the person exit the floating device for non-safety reasons. The Colorado or Green Rivers perhaps, but they are already public (I suppose.) Otherwise, the Ogden, Weber, and Provo rivers - the largest near the Wasatch Front - have flows of less than 100 CFS most of the year. That would mean that the depth of the rivers would be about 6 to 12 inches in almost all places along the rivers most of the year.
In summary, the rivers are not usable at all without trespassing all year long, except during the month of spring runoff. Therefore, 99% of the time, the public cannot use the rivers. And as has been noted, the Supreme Court ruling is thrown in the garbage can by Utah's legislature.
Senator Stowell, you can't just throw people's rights out like you do the Friday night garbage. I think you will one day come to learn this. Unfortunately, it might take another 10 years and countless $$ in court costs to prove it.
But prove it we will, as already river users are planning to go back to court. And if the federal navigability laws are used, the land owners who own stream-bed land on navigable rivers will be in deep trouble. I sincerely hope it does not come to that, but because of the willingness of the Utah legislature to so easily squash the rights of the public and so blatantly ignore the judicial branch of government, I fear it will come to that.
Senator Stowell, I URGE you to reconsider your position.
I would like to request Senator Stowell introduce a bill that specifies that anybody using a sidewalk is trespassing. I don't like people using the sidewalk through my property, and I want to see them arrested for trespassing.
Thank you.
Senator Stowell says:
"This bill is not meant to create dissonance between recreationists and private land owners."
But the bill has done exactly that.
Senator Stowell you forgot to address the question...
"Can you name a single river/stream in this state that is public water over private land that has a consistent depth of four feet?"????
Where will my children I be able to fish?
Please answer the question.
Thank you
Respectfully,
Kris
HB141 has a delayed effective date on 2 sections. The effective dates are in the last section of the bill and those 2 sections take effect on July 1, 2011.
The task force cannot look at every section of every stream. About 75% of the streams are already open to the public because they flow over public land or have permission of the landowner. I am looking to identify individual properties that have conflicts and I invite comments from both the Fishermen and the Landowners. DWR is also working on identifying conflict properties.
At no time have I ever said that a stream must be uniformly 4' deep to float it. I did say that the vessel in which you float must be sized to the stream you are floating--i.e. some will allow use of a boat and on others you can only use an inner tube. HB141 allows you to touch the stream bed to push yourself off if you get hung up. You may also touch the stream bed for safety reasons. I was floating a stream on inner tubes with my grand kids and one of them floated under some willows and began screaming. I had to jump off my tube and drag her out of the willows. That is allowed. You are not allowed to anchor or stop, but must float with the stream flow. You may leave the stream to go around obstacles.
The purpose of the Utah Supreme Court is to interpret the Utah Constitution and the Utah Code. There is nothing in the Constitution about stream bed access and the Conatser Decision does not address any constitutional princples. The Supreme Court only interprets what is in Utah Code in the Conatser Decision. The Legislature feels there is not enough detail in the Utah Code about stream access and has filled in more detail with HB141. It is my understanding that it is common practice for the Legislature to go back and fill in more detail in these situations.
The task force members are appointed by President Waddoups and Speaker Clark. If you have suggestions, please contact them.
We can continue to pick at each other over the next month and argue legal issues and get nowhere. Alternatively we can work together to identify the conflict areas between fishermen and landowners (at the individual property level) and then go to work in May to resolve the issues. I INVITE BOTH FISHERMEN AND LANDOWNERS TO SUBMIT A DESCIPTION OF THE WORST CONFLICTED PROPERTIES AND THEN THE TASK FORCE WILL INSPECT THEM ON THE GROUND AND HOLD A PUBLIC HEARING IN THE AREA TO LEARN MORE ABOUT THE PROBLEM. Senator Dennis Stowell
This post has been removed by the author.
(re-posted after spell check...)
Dear Sen Stowell:
I can appreciate your desire to start the dialing on what might be the most conflicted streams. However, I feel that the deck is stacked against recreationists from the get-go. You and the others that backed HB141 also backed the secretive process and back-room dealmaking that crammed HB 141 through both the house and senate. When the concept of SB 281 was initially floated, it was sold to the anglers that this was essentially an interim study project, and that HB 141 was to be shelved. Next thing we knew, you and Rep McIff sprung a revised HB 141 on the Senate floor, and within hours it was voted through.
It’s interesting to note that the House was less enthused to pass the second version of HB 141; clearly some were having second thoughts on the process.
SO regardless of what happens with your task force, I, and I suspect many others, cannot be satisfied with the outcome because we believe the process you are advocating was tainted from the start. How can we begin to trust each other when both of your bills were drafted in secret?
Cary Asper
SLC UT
Senator Stowell,
With all due respect, what you said on the floor in the debate, what you are writing here, and what the law actually says are three different things. By this time I would have thought the bullet points would be consistent.
Please go back and listen to the floor debate. You make the emphatic point to your fellow senators that to legally float a river, it must of a depth that the floater cannot stand up and touch bottom. Period.
However, the law states:
(1) There is a public right to float on public water that has sufficient width, depth, and
flow to allow free passage of the chosen vessel at the time of floating.
(2) Subsection (1) includes the right to: incidentally touch private property as required for safe passage and continued
movement; portage around a dangerous obstruction in the water, if portage is made in a manner that is:most direct; least invasive; and
closest to the water; and fish while floating.
Nowhere does this bill outlaw standing on the bottom as you stated in the debate. Instead, a literal reading of this bill states that if your boat draws three inches, you can float a river with a four inch depth. So why the obfuscation?
Thus, in spite of what you said on the floor to get this bill passed, I can float any craft I want down any public water on private land that I want. If I get stuck after three feet, I can just free myself and take off for a another 5 foot run until getting stuck again.
You don't define "free passage"as a distance over time so that is open to any interpretation that I choose to give it. Six feet, sixteen feet, 1,600 feet? Ten minutes or ten hours? That choice is up to me.
And, as a bonus point, I can carry my spinning rod and fish while I am at it. So all I have to do to fish ANY public water over private land is to stick my butt in a kayak and careen down the stream, bouncing from rock to rock, and I would be
perfectly legal.
This bill is a mess. You should ask the Governor to veto it, convene your task force, and write a comprehensible bill. I would suggest zeroxing the Idaho bill and calling it good.
Sincerely,
John Weis
801-278-3847
I am from Colorado and only fish Utah a couple of times a year. I am interested in understanding HB141 from an outsider's perspective. It strikes me in much of the commentary I have seen that there is a lot more emotion than discussion. So here is my view for what it is worth.
1. Under the bill, there are 3 classes of access. Navigable waters which grant public access generally, floatable waters which grant access to craft that can achieve passage, and public recreational waters where one can prove the 10 year period of use.
2. I note the comment that it is the intention to return to the pre Conatser access.
3. I note that Conatser defined the constitutional limits and rights of the public in relation to water.
Following from those propositions:
1. If in fact Conatser defined the limits and rights, anything in the bill which restricts the effect of that decision will be unconstitutional. There are of course the police powers so that there might be restrictions imposed by licensing or for other reasons such as environmental. That can be a Trojan horse for restriction.
2. The federal definition of navigability is ever changing therefore the extent to which that will apply will be determined by a Federal Court. That is beyond the ability of a Utah Court to control.
3. The process for establishing public access and the proof required, could easily be manipulated and rendered a hurdle rather than an asset. For instance the test that the public use the water for at "least 10 consecutive years". What does that mean? If one person went there once a year for 11 years for 1 day a year and gave affidavit material to that effect, is that sufficient? If several people fished water consistently for 9 years, took a year off because of a bad drought and then fished for another 9 years, would that preclude the definition applying? If one person is not enough to satisfy the definition of "public" how many is necessary. 2? 10? 50? 100? And what proof is going to be required apart from a basic affidavit? Is there going to have to be independent evidence that shows presence on each of the 10 years at a specific place such as a photograph with a newspaper showing the date?
What evidence is necessary to establish that a landowner has interrupted the period and what is the burden? For defining "open and notorious" what if a landowner says he didn't see anyone there ever and therefore he doesn't believe anyone was on his land? If a landowner simply gives an affidavit saying that he threw one person off his property once every year is that sufficient to interrupt the period? What if at the time of throwing one person off, the landowner permits other people to stay?
Basically, people lie. Landowners lie. Members of the public lie. So how does one impose an adjudication mechanism when all you have is competing lies? Is the presumption always in favor of the landowner? If so, the public will have an impossible burden.
In other words, although in theory it might sound reasonable, in practice it might be an impossible test to satisfy if the public bears the burden of proof. The easiest way to test it is to reverse it. Make a landowner prove that there had not been any continuous use for 10 years. How would a landowner do that?
I understand that there is a presumption of a right to private property, but in such a case, if there is a standard which is impossible to reasonably satisfy, that could easily be determined by a court for all practical purposes to be a constructive denial of access and rendered unconstitutional.
I have questions on floating which exceed the character limit so I will post that next.
Jack
Continuation.
4. In relation to the floating access, the bill does seem relatively clear provided there are no hard and fast rules in relation to what are the dimensions of a stream. It seems straightforward that passage is relative to the size of the craft. The interesting question arises though, is it an objective or a subjective test? Furthermore, lets say a boater anticipates that a stream grants easy passage, but for whatever reason it doesn't because of unforeseen exigencies. Does that mean that the boater is in breach because of unanticipated obstacles to passage, or is there some leeway granted to a boater in such circumstances? In other words, is a boater better off if he has no idea of the journey ahead, or is he penalized because of foreknowledge? And at what point does that have the effect of no longer relieving the boater from a trespass action by a landowner?
Overall, though in theory the bill might appear reasonable, it seems to me that there are a lot of questions which arise which will take a lot of time and effort to resolve and at a very significant cost. I think time will tell, but it would not be difficult to foresee an approach developed by the courts in relation to public recreational access which makes it almost impossible to prove continuous use in a lot of waters. I can understand the need to strike a reasonable balance, so it will be interesting to see how it works out.
But in the end, I suspect that if the matter is taken back to the court that decided Conatser, to the extent that the bill is construed as attempting a defacto reversal of the position defined in that case, the bill will be struck down as unconstitutional. Given the severability clause I suspect that the public recreational access provisions will be the most likely to be struck down as unworkable and constructive denial.
I would be interested in a considered response.
Thankyou. Jack.
Senator
You said in one post:
"The purpose of the Utah Supreme Court is to interpret the Utah Constitution and the Utah Code. There is nothing in the Constitution about stream bed access and the Conatser Decision does not address any constitutional princples. The Supreme Court only interprets what is in Utah Code in the Conatser Decision."
Respectfully, I take issue with that statement. Conatser confirmed the existence of the public easement to use the public water and the streambed which arises under the Constitution. Thereafter it interpreted the extent of the easement. That was essentially the issue arising from the District Court case.
Consequently, given that the public has an easement based on the Constitutional right of access to public water, do you anticipate that you are changing the Court's definition of the easement, or are you merely creating rules to define the extent of the public use of the easement?
In simple term, taking the public recreational use test you have devised, without changing the public easement you are creating a mechanism whereby you are determining when the public can and cannot enjoy that public easement.
Have you considered your bill from this viewpoint, and the consequences flowing from such an approach?
Thank you. Jack
Senator
A further note concerns your statement to the effect:
"There is nothing in the Constitution about stream bed access and the Conatser Decision does not address any constitutional princples. The Supreme Court only interprets what is in Utah Code in the Conatser Decision."
With respect, I suggest that this view is open to serious doubt. Conatser addressed the issue decided by the lower court to the effect that the public easement did not permit wading or walking on the bed of the river. Conatser overturned the lower decision. There is no question that the waters of Utah are public waters, and that they flow via an easement which might be enjoyed by the public. These are constitutional rights. Consequently, in deciding that the public did have the expanded right identified in Conatser, the Supreme Court was in fact defining the ambit of the recognized constitutional right. Consequently it is seriously open to doubt to argue that Conatser was not making a finding with respect to the ambit of the constitutional right. Therefore, any attempt to limit the constitutional ambit legislatively will be found to be unconstitutional.
I would be interested in your view. Thankyou. Jack
Sorry about posting the same question twice. The first one did not show up until I posted it a second time.
Jack
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