Utah House votes to curb stream access

Published February 23, 2010 5:18 pm
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The Utah House has voted to restrict public access to streams that cross private property except where anglers and others can prove a continuous use has existed for at least 10 years.

The bill, a substitute version of HB141, responds to a 2008 Utah Supreme Court ruling that said state law gives access to public waters. Representatives who supported it Tuesday said the bill reasserts constitutional protections for private property as the nation's and state's founders intended.

"The pilgrims came here not to go fishing, but to own land," said Rep. Steve Mascaro, R-West Jordan.

Recreationists who lost this legislative round viewed the issue very differently, saying the bill cuts into public rights to public waterways.

"The public has a right to its water through the [Utah] Constitution, period," said Utah Rivers Council Executive Director Zach Frankel. "So unless [legislators] do a constitutional amendment, they're not going to be able to change that."

He said thousands of recreational users have become involved since the court ruling, and "people will be falling over themselves to sue" if the Senate passes the bill.

Rep. Mike Noel, R-Kanab, said the court decision was based on statute, not constitutional principles, and granted public rights where none previously had existed. For instance, he said, a creek that passes through his land never had seen public use -- there are no fish there -- but the ruling meant people could wade through to hunt or pursue other activities.

He said it's the Legislature's duty to protect private-property rights of the few against the demands of hundreds of thousands of fishers.

"This is not a popularity vote," he said, but a case of upholding constitutional principles that protect against a "tyranny of the masses."

Provo Canyon rancher Steve Ault said he spent last summer documenting the nuisance of public access on his riverbank. Tired of finding feces "behind every bush," he said, he contracted to provide two portable toilets. The public -- anglers, floaters and hikers -- filled both every week of the summer, he said.

HB141 won't affect him, he said, because there's a clear pattern of public use on the Provo River. Besides, he said, his family always has allowed land access on the highway side of the river, and won't change that.

But he's glad it protects his land from the further intrusion it might have faced under a competing bill that failed on Monday. That bill would have allowed access up to the ordinary high water mark.

"For us it was fundamental constitutional principles," Ault said, and protecting private property is paramount.

Rep. Sheryl Allen, R-Bountiful, said that, as a member of a family of river rafters and an owner of property on a public water -- Bear Lake, where users always had respected private property -- she couldn't support the bill.

"I feel like in opposing this bill I'm opposing motherhood, fatherhood, apple pie and cherry pie combined," she said, noting the debate's tone of moral authority regarding private-property rights. Still, she said, the bill's requirement for 10 years of continuous public use of a water before establishing a legitimate use is too strict and doesn't provide a balance for the public.

The 50-25 vote for HB141, proposed by Rep. Kay McIff, R-Richfield, came a day after lawmakers rejected a competing bill that would have codified the court's recognition of stream-access rights and allowed the public to come ashore up to the ordinary high-water mark.

McIff said his bill is meant to protect landowners along the 7,000 miles of streams that cross private land, but also to preserve access where it has been clearly established. The standard of 10 years of continuous, well-known public use is the same that the state long has recognized as the legal requirement for maintaining public-access roads across private property.

"It just doesn't open up lands where they have never gone," McIff said.

Utah Farm Bureau Federation spokesman Sterling Brown said most members are supporting HB41 as it heads to the Senate, and they consider its allowance for previously established access a major concession to the public.

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