This Land Is Your Land?
Restoring our right to access Utah’s rivers and streams...
Was a great high wall there, that tried to stop me,
Was a great big sign there says “private property”,
But on the back side, it didn’t say nothin’,
This land was made for you and me.
- Woody Guthrie
I just received word of a rally this coming Friday in Salt Lake concerning the public's right to access Utah's waterways, an issue I've been following for the last few years…
HB 141 Public Waters Access Act
I've often wondered why we allow our politicians to attach ambiguous titles to bills with the intent of clouding it’s actual purpose. This act should have probably been titled the "Public Waters Non-Access Act" as it closed off access to over 400 of Utah's waterways.
There is a long standing tradition in this country that our waterways are considered public property and, as such, our right to access and use these waterways for recreational purposes are protected. There is also an implied "public easement" right to travel these public waterways, even on foot. This public easement is under attack in the State of Utah where we may lose the right to canoe, fish, tube, hunt, and engage in other river based recreation where "wading" or "porting" is necessary.
Here's a little background information on this bill:
In 2000 a Utah couple, Kevin and Jodi Conatser, were cited for trespassing while wading the Weber River on a section that passed through privately held land. It should be noted that the Conatsers accessed this section of the river by raft and DID NOT leave the river bed while wading. They appealed this trespassing citation all the way up to the Utah Supreme Court where their right to access (including walking the river bed) was upheld. For more information, access the timeline on the Utah Stream Access Coalition website.)
In 2010, Utah representative Kay Mciff (Richfield) composed a bill (HB 141) that effectively negated the Supreme Court ruling by creating a new law prohibiting the public from wading rivers while recreating in areas where waterways passed through privately held lands. While drafting this bill, Mciff apparently ignored the fact that these access rights had been upheld by previous court decisions and that private lands were already protected by existing trespass laws; recreational users are prohibited from crossing the high river mark which is considered the point where "public property" ends and "private property" begins. Even though it was apparent that this bill might not stand up to a constitutional court challenge, the Utah Legislature passed it anyway (no surprise there).
At the time that this legislation was proposed, the Ogden Standard Examiner ran a well researched editorial on the issues surrounding HB 141, and in particular the question of easement: Legislative Rhetoric And The Demise Of The Right To Recreate On Public Waters
How Things Stand Today
Compromise language has been proposed to amend (replace?) the law to make it pass constitutional muster and still protect the rights of both property owners and the public. Representative Dixon M. Pitcher is apparently introducing a new "Public Waters Access Act" similar to a law in Idaho that has been in effect for over thirty five years; a law that protects the land owner AND the public right to access public waters. This would be the simplest and, in my opinion, the best solution. A recent article from the Salt Lake Tribune does a good job of covering this “compromise bill”: Bill: Reopen Streams To Public
There are also two pending court challenges contesting HB 141, the first of which addresses the constitutionality of this law. One illuminating part of the write up points out that private developers are selling luxury homes with the idea of offering buyers private access to "blue ribbon" fisheries courtesy of the State of Utah; an elitist concept that I find particularly repugnant. You can find a detailed summary of this constitutional challenge on the Utah Stream Access website.
The second lawsuit seems to take an approach straight out of the Republican play book: invoke an archaic law from the 1800s and force the legislature to address seemingly conflicting laws that are still in effect. This lawsuit attempts to show that Utah's rivers have been used historically as a "highway for public commerce and recreation" and therefore public easement rights are protected under the "Utah Public Trust Doctrine". This is an attempt to restore the public easement even if the 2010 law (HB 141) survives it's constitutional challenge (which I’m hoping it doesn’t). Once again, the Utah Stream Access Coalition provides a detailed summary of this commerce challenge.
The Salt Lake Tribune also covered the "Public Trust Doctrine" angle, but I feel it was somewhat negligent in that it failed to even mention that under US law navigable rivers are considered public property up to their high water mark: Utah Anglers, Boaters Use 1800s Law To Fight 2010 Waterway Law.
Mciff Strikes Back
In response to the second lawsuit, Rep. Kay Mciff (an attorney) has now figured out a way to circumvent the courts by introducing yet another bill (HB 68) that limits the "Utah Public Trust Doctrine" to "current enacted laws"; effectively hamstringing this "Public Trust Doctrine". Mciff's intent seems to prevent legal challenges to laws pertaining to the Public Trust Doctrine even if those laws appear unconstitutional. Although Mciff's intent appears to be directed at the stream access issue, his new bill could affect future challenges pertaining to other aspects of the Utah Public Trust Doctrine.
In Utah, whenever the rights of the public appear to conflict with the rights of property owners, the public almost always loses. Utah law appears to negate 150 years of water use law and could even be used as a model for attacking the the right to river access in other states. This is one fight we can't afford to lose. Let your voices be heard by contacting your representatives.
If possible, also attend the rally this coming Tuesday (2/11/14) to help raise public awareness on this issue: Utah Rally For Public Water Access.
- Mike Iverson (updated 2/6/14)
P.S. Here are a few insights and thoughts I had after attending the 2013 rally:
On the positive side, Rep. Mciff acquiesced to the public's input and pulled his bill (HB68), at least until the two legal challenges to his original bill (HB141) are played out in court.
Now for the down side...
After the rally, I waited a couple of hours for a chance to meet with my representative (Gage Froerer) to urge him to consider the "compromise bill" sponsored by Rep. Dixon M. Pitcher which is based on Idaho's access law, a law that has worked well for over thirty years. I was confused by his reaction as he didn't seem interested in anything I had to say about the issue. He even told me that he ALWAYS sides with private land owners in these issues, which indicated to me that his mind was already made up even before he knows what's actually in the bill!
Like I said, I was confused with Rep. Froerer's reaction, at least I was confused until I got home and found a newspaper article about him dating from back in 2009. After reading the article, it became clear that my meeting with him was a total waste of time. He apparently has a major conflict of interest with any bill dealing with stream access. I'll be curious to see if he abstains from voting on the compromise bill if it ever comes up for a vote...
Stream access rally at Utah Capitol on Tuesday - Ogden Standard Examiner - 02/06/2014
Water rights and 2014, HB37 Public Waters Access Act -- Will history repeat itself? Ogden Standard Examiner - 02/05/2014
Fishing access focus of Ogden lawmaker's bill - Ogden Standard Examiner - 01/20/2014
OUR VIEW: Streams belong to taxpayers - Ogden Standard Examiner - 03/15/2010
Utah Stream Access Trouble - Legislature is at it again! - Bryan Gregson Photography - 01/17/2013
USAC action against HB68/HB141 - UtahWildlife.net - 01/30/2013