The Utah Supreme Court unanimously ruled in Conatser v. Johnson that fishermen have an easement to walk up and down privately owned streambeds, so long as it is reasonable under the circumstances. The Utah House recently passed HB 141, which would overturn the 2008 court decision if the Senate also passes it.

The main argument in the House for passing HB141 was that allowing a fishermen's easement on private property violates the Utah Constitution by taking property rights without compensation. This argument appears valid on the surface, but it falsely characterizes the Conatser decision as being against freedom, liberty and the constitution, and it exaggerates, ignores and misrepresents the facts. The Senate should not pass HB 141 because:

(1) The public owns the water and the benefits from the water.

What constitutional private property rights are lost by the easement? In rural areas, streams may be used for watering livestock, irrigation and other purposes. If recreationists interfere with these activities, their presence is unreasonable and not allowed under the court ruling. There is no inherent conflict of purposes, however.

What about privacy and pride in ownership of streamside property owners? Suppose a property owner purchased his or her land because of the aesthetic beauty of the stream? Should a fisherman be denied an easement to go through such an owner's streambed?

Even though such access might lessen the landowner's satisfaction of ownership, the answer is no, for the following reason: The beauty and recreational value of the stream results from the water in the stream, not the streambed, and the public, not the landowner, owns the water .

Because of the public ownership of the water, the aesthetic qualities resulting from this ownership should benefit the public (which includes the landowner). If land was purchased for the reason of obtaining exclusive use or enjoyment of a stream, the purchase was made by mistake. The water has always been the property of the public.

If this mistaken pride in ownership (of what is not owned -- the water) is subtracted from the current debate, the remaining landowner complaints are not sufficient to keep fishermen off of the public's waters.

(2) Uncompensated taking: Who's taking from whom?

Proponents of HB141 argued that legalizing public fishing on private stream beds is uncompensated taking of private property. What about uncompensated taking of public property by the exclusive use of the water by landowners? If landowners were compensated for the public use of their streambeds and also any actual damages done by fishermen, and then had to pay the state for the value that the water provides to them, including its aesthetic value, the state would make money.

Would a landowner rather have a stream on his land with fishermen on it, or no stream and no fishermen? The landowners are indebted to the public, not vice?versa.

(3) HB141 combined with a law passed last year would prohibit almost all stream fishing on private land.

Fishermen's access to private streambeds in Utah has decreased through the years. Up until 2009, however, fishermen still had access to private streambeds unless the land was properly posted. Last year this presumption favoring access was reversed. A bill titled "Criminal trespass on agricultural land or range land" passed and now makes "fencing" sufficient notice to prohibit entry without permission. Permission must be written, signed and dated.

This means: If a fisherman wants to fish a mile of a stream on a private streambed, he or she must obtain this written, dated permission from each landowner on each side of the stream over this piece of land. Want to fish there again next month? Collect another handful of permissions for that date. Granting permissions is purely at the discretion of the landowner.

HB141 proponents answer simply: Fish on public land. This attitude is not consistent with the state's ownership of the water.

Under current law, with Conatser intact, once you gain legal access to the stream, you can move up and down under a legal easement. If you own land along 100 feet of a stream and HB141 passes, you would be required to obtain written, dated and signed permission from your neighbors to fish beyond the 100 feet of your property.

(4) Much of the best fishing is on private land.

Much, some would say most, of the best stream fishing in Utah is on private land. There is good fishing higher up in the national forests, but there is more accessible stream fishing in the valleys where the ownership is mostly private. With more people wanting to fish all the time, let's not allow HB 141 to become law.

Duke Edwards is a fisherman and attorney living in Sandy.