“I am signing HB141 because we need to begin the process of addressing the unfortunate gulf between outdoor recreationalists and private property owners,” Herbert said in a statement. “Today, I pledge my commitment to work with both sides over the coming year to improve opportunities and arrive at a workable solution.”

HB141, sponsored by Rep. Kay McIff, R-Richfield, was one of the most tenaciously fought battles on Capitol Hill, pitting private property owners against anglers and other river recreationists.

The measure essentially seeks to undo a 2008 Utah Supreme Court decision that found that the waterways in the state are publicly owned, and have been for generations.

The court ruled that the public has a right to use those waterways for fishing, boating and other recreation, even if that means they have to cross private property or walk across the privately owned stream bed or bank.

Private landowners cried foul, arguing the ruling eroded their constitutionally guaranteed rights to control their private property.

MORE–> http://www.sltrib.com/News/ci_14792699

Yesterday, we learned of the Gov’s decision to sign HB141 today. Recognizing it’s flaws he will ask the AG to not interfere with any injunctions. Outside of the issue, which has personal ramifications, the Governor support for a flawed process, closed door politics and for a bill that will eventually cost tax pa yers time and money, shows a glaring lack of leadership at a time when we can ill afford such.

DO NOT RETALIATE!….. PLEASE CONTINUE TO FOLLOW THE LAWS

THANK YOU ALL!!!! YOU, YOU AND YOU! All of you, including people that have no idea who or what UWG is. YOU inspired others to stand-up, YOU send thousands of notes, YOU made thousands of calls, YOU personally went to the Capitol, YOU kept the rest of us motivated, YOU donated money, time and fishing days, YOU spent hundreds of hours weekly on the phone, YOU ALL did many great and wonderful things. THANK YOU!

Years down the road when this mess is long forgotten, when voting stats, party lines and politics are all lost memories, Utah’s Capitol hill will still remember, YOU…. they’d never seen what YOU accomplished… take these lickings and be proud of your honest effort, be humble in knowing that integrity cannot be bought nor sold and for hell sakes, go fishing!!! YOU have all earned it.

THANK YOU ALL!!!

The road ahead is a tough one. WE will all need to remain cool calm and collect. Be a good custodian of our resource, even though we might not be able to utilize it. PLEASE PLEASE PLEASE –>Be a good neighbor and steward towards every single landowner.

Call AND write Governor Herbert and ask him not to sign the Bill.

Here are his phone numbers:

• 801-538-1000
• 800-705-2464
• and a link to his feedback form: –> http://governor.utah.gov/goca/form_comment.html

• Spencer Eccles [executive director Gov office] Speccles@utah.gov,

Governor’s Office Economic Development

• Amy Hamblin – Assistant to Executive Director
• 801-538-8828
• ahamblin@utah.gov

GOED (Governor’s Office of Economic Development)

• http://goed.utah.gov/contact/

• Riley Cutler – Director of Outdoor Products Cluster
  801-538-8873
  crcutler@utah.gov

Utah Tourism Industry Coalition

• http://utahtourism.org/?page_id=13
• Danny Richardson, Executive Director
  Phone – (801) 505 – 52266
  Fax – (801) 534 – 4980
  info@utahtourism.org

++++++++++++++++++++++++++++++++++++++++++++++

CONCERNS WITH 2S HB141 STREAM ACCESS

•Process. The Second Substitute was published after 11:00 a.m. and the bill was debated and voted on that afternoon, only three hours later.

•Lines 51-53/69. Changes Landowner Liability Act to apply to only trespassers, as opposed to guests, invitees, and others. Deletes language that encourages landowners to allow public use of public lands and public water.

•Lines 74-75. Contradicts the Supreme Court’s ruling in Conatser v. Johnson. (3) Is confusing because it compares duty to govern “public water for beneficial purposes” with “constitutional protections” for private property owners. Use of public water for beneficial purposes is what is required for the appropriation of water, and is also protected by the Utah Constitution. Recreational use has no relationship with beneficial purposes.

•Lines 145-175. Usurps the role of the judiciary in making declarations of constitutional interpretation regarding private property.

•Line 158 – States there is a question “whether” a public easement exists when in fact the 1982 J.J.N.P. case specifically stated that a public easement exists on all natural waters in the State. This is consistent with the public trust doctrine of water adopted in most if not all States.

•Line 162 – States the Utah Supreme Court in Conatser did not address whether their decision was a constitutional takings without compensation. This is accurate; however it is unlikely the Court would have taken that action if they believed it was unconstitutional. Only the U.S. Supreme Court can determine if a State Supreme Court action is unconstitutional and the US Supreme Court has never done so in any case in the past.

•Line 168 – Says that J.J.N.P. case found “a right to float on public water” when in fact the J.J.N.P. case found that the public had an easement over all natural water in the State. The Court specifically did not address whether or not the public could touch the water’s bed, incidental to the easement.

•Line 174 – Compares the adverse use similar to that used to establish a public highway; however, a public highway was originally private; the water has always belonged to the public. The issue is defining the extent and parameters of the public’s use of the easement.

•Lines 194-196 – changes the 10-year prescriptive easement period from 1S HB 141 to be within the last 14 years instead of commencing in 1982 (10 years use plus 4 year statute of limitations). This has the effect of excluding public recreational access for areas that have been recently been purchased and developed and now exclude the public, like Victory Ranch and Carrus properties. For example, prior to 1985 many individuals report fishing the upper Provo River with their children and grandchildren, but it is now blocked by Victory Ranch.

•Lines 194-201 – Requires a prescriptive easement to be proven for 10 years for public recreational access. This will have the effect of litigation over most sections of river that flow over private property.

•Lines 202-204 – Permissive use does not qualify for the prescriptive easement that must be proven by the public to obtain access. This means that a property owner who has allowed access historically can now decide to block access and be successful because prior use was not adverse. The different effective dates on this bill make that a likely result. [see, lines 291+].

•Line 207-210 (4) – Precludes future lawsuits for prescriptive easement once one area of streambed has been litigated. This could present “standing” issues for access to courts. A prescriptive for one type of use may not be conclusive for another type of use. (also in lines 241 (7)).

•Line 216 – Contains an exception from access for “private hunting” developments but no other type of recreational development, like fishing.

•Lines 223-263 – Provides for quiet title actions and injunctive relief lawsuits. This will provide for perpetual employment for attorneys.

•Line 291 Section 73-29-208 – is a standard “severability” clause which is new and states that if any part of the legislation is found to be unconstitutional, the remaining parts of still in effect. This is because there are parts of the bill that many believe are unconstitutional.

•Line 291 Section 73-29-209 – Contains two different effective dates, May 1, 2010 for the landowners’ protections and May 1, 2011 for the public’s right to claim prescriptive use. This means the landowners can immediately preclude access to the public but the public cannot go to court to claim there has been the 10 year use for an extra year. This is unbalanced and allows all private landowners and developers to learn about the bill, block access, and then claim no more permissive use, by the time the public can file their claims.

In an odd twist of events, the 2nd substitute HB-141 was passed with a 19-10 vote late in the day.  The 2nd substitute HB-141 was made public only 3 hours before the vote…. in a nut shell, its still full of  problems.

Also, Senator Stowell attached a bill, SB-281 Public Access to Stream Beds – Utah Waterways Task Force, to HB-141. We’ll post a full breakdown shortly.

The Vote–>http://le.utah.gov/~2010/status/hbillsta/hb0141s02.htm Please note how your Representative voted and act according come election time. If they stood up for the Constitution and water law, send in a note thanking them.

• 2nd substitute HB-141  HERE –> http://le.utah.gov/~2010/bills/hbillint/hb0141s02.pdf

• S.B 281 HERE –>http://le.utah.gov/~2010/bills/sbillint/sb0281.pdf

NEXT STEP –> CONTACT THE GOVERNORS OFFICE!!!!

• SEND AN EMAIL TO THIS GUY –> Spencer Eccles [executive director Gov office] Speccles@utah.gov,

Governor’s Office Economic Development

• Amy  Hamblin
  Assistant to Executive Director
  801-538-8828
  ahamblin@utah.gov

GOED (Governor’s Office of Economic Development)

http://goed.utah.gov/contact/

• Riley  Cutler
  Director of Outdoor Products Cluster
  801-538-8873
  crcutler@utah.gov

Utah Tourism Industry Coalition

• http://utahtourism.org/?page_id=13

• Danny Richardson, Executive Director
  • Phone – (801) 505 – 52266
  • Fax – (801) 534 – 4980
  • info@utahtourism.org

]]> http://utahwaterguardians.org/?feed=rss2&p=636 0 http://utahwaterguardians.org/?p=621 http://utahwaterguardians.org/?p=621#comments Tue, 02 Mar 2010 01:10:12 +0000 admin http://utahwaterguardians.org/?p=621 IN LESS THAN 48 HOURS WE COULD LOOSE  WHAT THE CONSTITUTION AND SUPREME COURTS GAVE THE PUBLIC, STREAM USE!!!

CALL YOUR SENATOR.. many are reporting that they will not show. A few reports indicated they ARE NOT READING your emails, they are being asked to purge them… SO CALL

Find your Senator here –> http://www.utahsenate.org/map.html

Talking points from Representative Fowlke

• HB 141flier1A
• HB 141 flier1B
• HB 141 FLIER 2A
• HB 141 FLIER 2B

The Public Trust Doctrine

a. The ‘public trust’ doctrine, the roots of which can be traced to the Magna Carta and even Roman law, has been recognized in most jurisdictions of the United States. It provides that public lands and waters are held in trust by the state for the benefit of the public. It prohibits the disposal of public lands and waters or the restriction of access to or use of public lands and waters except as necessary to further the public’s interests in those lands and waters.

b. The principles of the public trust doctrine have long been recognized in Utah case law and have even been codified in part. For example, the beds of Utah’s navigable rivers and streams are sovereign public lands – Utah Code Ann. 65A-1-1(5) – and, as such, they are subject to the public trust doctrine – Utah Code Ann. 65A-1-1(4). The public has the right to access to these beds for the purpose of hunting, trapping or fishing. Utah Code Ann. 23-21-4(1). HB141 ignores these provisions of Utah law.

c. HB141 violates the ‘public trust’ doctrine, as codified by state law and otherwise, by effectively prohibiting or unreasonably restricting public access to the beds of Utah’s navigable rivers and streams.

> Art. I, Sect. 23 of the Utah Constitution reads:No law shall be passed granting irrevocably any franchise, privilege or immunity.

HB141 violates Art. 1, Sect. 23 by granting to or recognizing in private landowners an irrevocable franchise for or privilege of exclusive use of public waters and public lands held in trust for people of the State of Utah

^{Luz Robles (D)
Minority Caucus Mgr
lrobles@utahsenate.org
Home: (801) 953-0905
Office: (801) 521-0407}

^{Ben McAdams (D)
bmcadams@utahsenate.org
Home: (801) 618-1946
Office: (801) 359-2544}

^{Gene Davis (D)
gdavis@utahsenate.org
Home: (801) 484-9428
Office: (801) 484-9442}

^{Patricia W. Jones (D)
Minority Leader
pjones@utahsenate.org}

^{Home: (801) 278-7667
Fax:    (801) 322-5725
Office: (801) 322-5722}

^{Karen Mayne (D)
Assistant Minority Whip
kmayne@utahsenate.org}

^{Home: (801) 968-7756}

^{Michael G. Waddoups (R)
President of the Senate
waddoups@utahsenate.org}

^{Home: (801) 967-0225
Office: (801) 355-1136}

^{Ross I. Romero (D)
Minority Whip}

^{rromero@utahsenate.org}

^{Home: (801) 364-2451
Fax:    (801) 594-8486
Office: (801) 844-7229}

^{Karen W. Morgan (D)}

^{kmorgan@utahsenate.org}

^{Home: (801) 943-0067
Fax:    (801) 943-9614
Office: (801) 538-1406}

^{Wayne Niederhauser (R)
Majority Whip
wniederhauser@utahsenate.org}

^{Home: (801) 942-3398}

^{Fax:    (866) 283-7751
Office: (801) 558-4766}

^{D. Chris Buttars (R)}

^{dcbuttars@utahsenate.org}

^{Home: (801) 561-0535
Fax:    (801) 561-3242}

^{Howard A. Stephenson (R)
hstephenson@utahsenate.org}

^{Home: (801) 576-1022
Office: (801) 972-8814}

^{Brent H. Goodfellow (D)
bgoodfellow@utahsenate.org}

^{Home: (801) 968-0626
Cell:    (801) 556-4871}

^{Mark B. Madsen (R)
mmadsen@utahsenate.org}

^{Office: (801) 361-4787}

^{John L. Valentine (R)
jvalentine@utahsenate.org}

^{Home: (801) 224-1693
Office: (801) 373-6345
Fax:    (801) 377-4991}

^{Margaret Dayton (R)
mdayton@utahsenate.org}

^{Home: (801) 221-0623
Fax:    (801) 221-2513}

^{Curtis S. Bramble (R)
cbramble@utahsenate.org}

^{Home: (801) 226-3663
Fax:    (801) 812-8297
Cell:    (801) 361-5802}

^{Peter C. Knudson (R)
Majority Assistant Whip
pknudson@utahsenate.org}

^{Home: (435) 723-2035
Fax:    (435) 723-6371
Office: (435) 723-6366}

^{Jon J. Greiner (R)
jgreiner@utahsenate.org}

^{Home: (801) 621-0423
Office: (801) 629-8226}

^{Allen M. Christensen (R)
achristensen@utahsenate.org}

^{Home: (801) 782-5600
Cell:    (801) 710-0315}

^{Scott K. Jenkins (R)
Majority Leader
sjenkins@utahsenate.org}

^{Home: (801) 731-5120
Office: (801) 621-5412}

^{Jerry W. Stevenson (R)
jstevenson@utahsenate.org}

^{Home: 801-544-1211
Office: (801) 430-2575}

^{Stuart Adams (R)
sadams@utahsenate.org}

^{Office: (801) 546-6000}

^{Daniel R. Liljenquist (R)
dliljenquist@utahsenate.org}

^{Home: (801) 294-2378 ,}

^{Ralph Okerlund (R)
rokerlund@utahsenate.org}

^{Home: (435) 527-3370
Cell:    (435) 979-7077
Fax:    (435) 527-3370}

^{Lyle W. Hillyard (R)
lhillyard@utahsenate.org}

^{Home: (435) 753-0043
Office: (435) 752-2610
Fax:    (435) 753-8895}

^{Kevin Van Tassell (R)
kvantassell@utahsenate.org}

^{Home: (435) 789-0724
Office: (435) 789-7082
Fax:    (435) 789-8411}

^{David P. Hinkins (R)
dhinkins@utahsenate.org}

^{Home: (435) 384-5550
Office: (435) 748-2828
Fax:    (435) 748-2089}

^{Dennis E. Stowell (R)
dstowell@utahsenate.org}

^{Home: (435) 477-8143
Cell:    (435) 559-8143
Fax:    (435) 477-8111}

^{Stephen H. Urquhart (R)
surquhart@utahsenate.org
Office: (435) 668-7759
Fax:    (435) 272-4484}

This is NOT GOOD! Please contact all Senators NOW…

VISIT YOUR SENATOR IN PERSON!!!!

The vote http://le.utah.gov/~2010/status/hbillsta/hb0141s1.001h.txt

HB 141:
YEAS – 50

NAYS – 25

HB 141:
SEQUENCE #266 STATE OF UTAH 1SHB 141
HOUSE OF REPRESENTATIVES BY McIff
2010 General Session of the 58th Legislature
VOTE TABULATION

Recreational Use of Public Water on Private
Property

FEBRUARY 23, 2010 Clark, D.
11:33:28 AM SPEAKER OF THE HOUSE

Amended

YEAS – 50
Aagard Garn Mascaro Seelig
Anderson Gibson, K Mathis Sumsion
Barrus Gowans McIff Vickers
Bird Greenwood Menlove Wallis
Brown Grover Morley Webb
Dee Hansen Moss Wheatley
Draxler Hendrickson Newbold Wilcox
Duckworth, S Herrod Noel Wiley
Dunnigan Hunsaker Oda Wimmer
Ferry Hutchings Painter Wright
Fisher, Julie Ipson Powell Clark, D.
Frank Kiser Ray
Froerer Last Sandstrom

NAYS – 25
Allen Cosgrove Harper Poulson
Beck Daw Hemingway Riesen
Bigelow Dougall Hughes Seegmiller
Biskupski Edwards Johnson Watkins
Black Fisher, Janice King
Chavez-Houck Fowlke Litvack
Clark, S. Gibson, F Lockhart

ABSENT OR NOT VOTING – 0

KEY POINTS of INTEREST –HB 141:

• It is a clear violation of separation of powers, making it in direct contrast to the Utah Constitution Article V Section I and the ideals of our founding fathers.

• It was done in secret, and the substitute bill came out after it passed committee and was sprung on the House for a quick debate.

• Approves a political and controversial process of adding waters to a list that can be access by the public and saying what waters can’t be accessed by the public.

• Negates over 100 years of water law in Utah.

• Flies in the face of 3 Utah Supreme Court decisions separated by over 70 years declaring and defining the public’s easement in State waters.

• Refuses to balance two competing constitutional rights, but unconstitutionally disregards one in the favor of the other.

This bill is unconstitutional….PERIOD!

SENATE ROSTER

lrobles@utahsenate.org; bmcadams@utahsenate.org; gdavis@utahsenate.org; pjones@utahsenate.org; kmayne@utahsenate.org; waddoups@utahsenate.org; rromero@utahsenate.org; kmorgan@utahsenate.org; wniederhauser@utahsenate.org; dcbuttars@utahsenate.org; hstephenson@utahsenate.org; bgoodfellow@utahsenate.org; mmadsen@utahsenate.org; jvalentine@utahsenate.org; mdayton@utahsenate.org; cbramble@utahsenate.org; pknudson@utahsenate.org; jgreiner@utahsenate.org; achristensen@utahsenate.org; sjenkins@utahsenate.org; jstevenson@utahsenate.org; sadams@utahsenate.org; dliljenquist@utahsenate.org; rokerlund@utahsenate.org; lhillyard@utahsenate.org; kvantassell@utahsenate.org; dhinkins@utahsenate.org; dstowell@utahsenate.org; surquhart@utahsenate.org

We have less than 10hrs before the House vote…. PLEASE contact the Representatives and urge them to VOTE NO on HB-141

*******HB-141 is scheduled to go on the House floor at 10am tomorrow*****

HB-80 Fails on the House Floor

Representative Fowlke’s Bill failed to gain the votes need today to pass HB-80 on to the Senate.

HB-80 and its supporters played the right game, stayed true to the right process and unfortunately were out maneuvered by big money and private interests.

Do not let this discourage you, as the fight is far from over. We need to defeat HB-141. This legislation is a threat to Utah’s Water Recreation, Utah’s economy and the Constitution.

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Contact Your Legislator NOW!

VOTE NO H.B. 141

WE NEED YOUR HELP!!!!!  NOW IS THE TIME. THIS IS IT.  PLEASE MAKE YOUR VOICE HEARD!!

Please, take 5 minutes out of your day to send a short and sweet email. Even if its a one line sentence staying…VOTE NO HB-141

Although a personal note is much better, but IF you must, make it easy EASY and copy the above quote, and send to these email addresses below.

• You want to see endless court battles over the constitutionality of the bill and over which streams qualify and which don’t;
• You believe the Utah Supreme Court is likely to reverse its own unanimous ruling;
• You want to see this issue year after year;
• You believe in bills drafted in secret with no public input;
• You believe it should be a crime for a church group to float down a public waterway.

Once again the process surrounding HB-141 is drafted in secret with no public input! It was kept in secret and held from the public. This issue deserves a better process.

COPY AND PASTE

daagard@utah.gov; rogerbarrus@utah.gov; jbird@utah.gov; melbrown@utah.gov; sclark@utah.gov; dclark@utah.gov; bcferry@utah.gov; gfroerer@utah.gov; kgarn@utah.gov; fgibson@utah.gov; kwgibson@utah.gov; jgowans@utah.gov; keithgrover@utah.gov; nhendrickson@utah.gov; cherrod@utah.gov; greghughes@utah.gov; ehutchings@utah.gov; dipson@utah.gov; blast@utah.gov; blockhart@utah.gov; steven_mascaro@comcast.net; jmathis@utah.gov; kaymciff@utah.gov; rmenlove@utah.gov; mikemorley@utah.gov; mnoel@kanab.net; coda@utah.gov; ppainter@utah.gov; ssandstrom@utah.gov; ksumsion@utah.gov; curtwebb@utah.gov; ryanwilcox@utah.gov; cwimmer@utah.gov; bwinn@utah.gov; sherylallen@utah.gov; tbeck@utah.gov; ronbigelow@utah.gov; jbiskupski@utah.gov; lblack@utah.gov; rchouck@utah.gov; tcosgrove@utah.gov; bdaw@utah.gov; bdee@utah.gov; jdougall@utah.gov; jdraxler@utah.gov; sduckworth@utah.gov; jdunnigan@utah.gov; beckyedwards@utah.gov; jfisher@utah.gov; janicefisher@utah.gov; lfowlke@utah.gov; cfrank@utah.gov; rgreenwood@utah.gov; koryholdaway@utah.gov; neilhansen@utah.gov; wharper@utah.gov; lhemingway@utah.gov; fhunsaker@utah.gov; christinejohnson@utah.gov; briansking@utah.gov; toddkiser@utah.gov; dlitvack@utah.gov; csmoss@utah.gov; merlynnnewbold@utah.gov; mariepoulson@utah.gov; kraigpowell@utah.gov; pray@utah.gov; priesen@utah.gov; jseegmiller@utah.gov; jseelig@utah.gov; evickers@utah.gov; bwallis@utah.gov; cwatkins@utah.gov; markwheatley@utah.gov; lwiley@utah.gov;

COPY AND PASTE

bcferry@utah.gov, bdaw@utah.gov, bdee@utah.gov, beckyedwards@utah.gov, billwright@utah.gov, blast@utah.gov, blockhart@utah.gov, briansking@utah.gov, bwallis@utah.gov, bwinn@utah.gov, cfrank@utah.gov, cherrod@utah.gov, christinejohnson@utah.gov, coda@utah.gov, csmoss@utah.gov, curtwebb@utah.gov, cwatkins@utah.gov, cwimmer@utah.gov, daagard@utah.gov, dclark@utah.gov, dipson@utah.gov, dlitvack@utah.gov, ehutchings@utah.gov, evickers@utah.gov, fgibson@utah.gov, fhunsaker@utah.gov, gfroerer@utah.gov, greghughes@utah.gov, janderson34@utah.gov, janicefisher@utah.gov, jbird@utah.gov, jbiskupski@utah.gov, jdougall@utah.gov, jdraxler@utah.gov, jdunnigan@utah.gov, jfisher@utah.gov, jgowans@utah.gov, jmathis@utah.gov, jseegmiller@utah.gov, jseelig@utah.gov, kaymciff@utah.gov, keithgrover@utah.gov, kgarn@utah.gov, koryholdaway@utah.gov, kraigpowell@utah.gov, ksumsion@utah.gov, kwgibson@utah.gov, lblack@utah.gov, lfowlke@utah.gov, lhemingway@utah.gov, lwiley@utah.gov, mariepoulson@utah.gov, markwheatley@utah.gov, melbrown@utah.gov, merlynnnewbold@utah.gov, mikemorley@utah.gov, mnoel@kanab.net, neilhansen@utah.gov, nhendrickson@utah.gov, ppainter@utah.gov, pray@utah.gov, priesen@utah.gov, rchouck@utah.gov, rgreenwood@utah.gov, rmenlove@utah.gov, rogerbarrus@utah.gov, ronbigelow@utah.gov, ryanwilcox@utah.gov, sclark@utah.gov, sduckworth@utah.gov, sherylallen@utah.gov, ssandstrom@utah.gov, steven_mascaro@comcast.net, tbeck@utah.gov, tcosgrove@utah.gov, toddkiser@utah.gov, wharper@utah.gov, achristensen@utahsenate.org, bgoodfellow@utahsenate.org, cbramble@utahsenate.org, dcbuttars@utahsenate.org, dhinkins@utahsenate.org, dliljenquist@utahsenate.org, dstowell@utahsenate.org, gdavis@utahsenate.org, hstephenson@utahsenate.org, jgreiner@utahsenate.org, jvalentine@utahsenate.org, kmayne@utahsenate.org, kmorgan@utahsenate.org, kvantassell@utahsenate.org, lhillyard@utahsenate.org, lrobles@utahsenate.org, mdayton@utahsenate.org, mmadsen@utahsenate.org, pjones@utahsenate.org, pknudson@utahsenate.org, rokerlund@utahsenate.org, rromero@utahsenate.org, sadams@utahsenate.org, sjenkins@utahsenate.org, skillpack@utahsenate.org, smccoy@utahsenate.org, surquhart@utahsenate.org, waddoups@utahsenate.org, wniederhauser@utahsenate.org

Contact Your Legislator

Vote No H.B. 141

Vote Yes H.B. 80

House Bill 141 (Rep. Kay McIff) seeks to overturn the Utah Supreme Court’s ruling(Conatser 2008) which recognized the public’s right to access the streambeds of public waters on private property for lawful recreational activities. The state’s constitution declares, “The waters of the state are owned by the public.” This principle was codified by the Legislature over 100 years ago in the state’s water code which reads, “All waters in the state whether above or under the ground are hereby declared to be the property of the public.” For decades, the Utah Supreme Court has upheld this principle ruling that, “Title to Utah’s waters belongs to the public who are equal owners of the waters flowing in natural channels.” In 2008, the Utah Supreme Court ruled that the public cannot exercise its right to full enjoyment of public waters without having access to streambeds – meaning the state’s streams are open to the public for legal recreational use.

Key Provisions of H.B. 141

• Abolishes Supreme Court’s ruling that a public easement exists to access streambeds for recreational purposes.

• Denies public access to public streams on private property except by permission or after quiet title action for floating, fishing or hunting waterfowl as provided by state law, but not within 100 yards of any dwelling.

• Except by permission or quiet title, a person accessing a streambed on private property is trespassing.

• Quiet Title: In order to access a streambed on private property, a person must file a lawsuit against the landowner claiming that a prescriptive easement exists. The bill requires that the stream on private property must have been open to public recreational use for at least 10 consecutive years after September 22, 1972 and that the use must have been (a) continuous, (b) open and notorious, (c) adverse [contrary to the landowner's interest] and (d) without interruption. If quiet title is obtained, recreational users can access the streambed and private property 3 feet above the bank. The quiet title action standards outlined in H.B. 141 make it very difficult, if not impossible, to obtain a quiet title.

• Contains several declarations of policy, all designed to protect the bill against judicial intervention.

House Bill 80 (Rep. Lorie Fowlke) upholds the Utah Supreme Court’s ruling(Conatser 2008). In the spirit of cooperation, Rep. Fowlke held a series of public meetings that included landowners, farmers, ranchers, fishermen, rafters, kayakers and hunters to develop a compromise bill that addressed the concerns of all parties involved.

Key Provisions of H.B. 80

• Upholds Supreme Court’s ruling: public has an easement to access streambeds for lawful recreational purposes.

• Access is limited to the bed below the ordinary high water mark. Access does not extend above this mark if the stream is in flood stage. Access also requires sufficient water for the recreational activity. (Not enough water to fish or float, no access.) If the ordinary high water mark is not discernable, then access is limited to “wet feet.” Access also requires completion of a Division of Wildlife Resources program and certificate of access permit in order to use access.

• Access is restricted to entry from public property or public water (unless prohibited by the public property owner) or with the permission of a land owner.

• Portage: Anglers may exit the stream onto private property in the most direct and least intrusive path around a manmade obstacle for fishing. Floaters may exit the stream onto private property in the most direct and least intrusive path around both manmade and natural obstructions.

• Fencing is allowed across streams unless done to prohibit recreational users. Fencing can’t be done to unreasonably endanger the public. If landowners fence along a public road or access point, they are required to provide a gate or fence ladder to allow public access to the stream.

Its coming down to the wire now. HB-80 and HB-141 have both passed their respective committees and are on their way to the house floor. The big House floor debate is up next, we really need to turn it up an notch and contact your Representatives now!

HEARINGS
You can listen to the debates online. These were very interesting to witness and it does give you a good basis on what both bills are trying to accomplish. [you will need to download THIS]

HB-80 – (constitutional)–>http://ra.le.state.ut.us:8080/ramgen…030-0212101.rm

HB-141 – (un-constitutional)–>http://ra.le.state.ut.us:8080/ramgen…st/roomC445.rm

We are guessing HB-80 will make it to the floor sometime next week… Mon, Tues maybe… There is no definite pre-determined time, its going to be a last minute notification. You can watch the Calendar display HERE and HERE to track the Bills status. [click 3rd reading, refresh by clicking on list] This should give you an idea of when the big showdown will happen.

Please, take 5 minute out of your day to reach out to your elected Representative. Now.

Keep up the fantastic work everyone, great job so far!!

Committee Hearing(s) Friday!!

WOW, the past few days have been nothing short of a crazy experience.

Here is what we know…

• HB-80 -been assigned from the House “Rules Committee” to the House “Judiciary Committee”. Scheduled hearing is for this Friday, Feb 12th @ 2pm?! (not exactly sure of the time, but this is what we’ve been told)
  
  • http://le.utah.gov/~2010/htmdoc/hbillhtm/HB0080.htm
    
  • please contact the “Judiciary Committee” and ask them to support HB-80
    

• HB-141 [Rep. McIff] has been assigned from the House “Rules Committee” to the House “Natural Resources” committee. Scheduled hearing is for this Friday, Feb 12th @ 1:30pm!
  • http://le.utah.gov/~2010/htmdoc/hbillhtm/hb0141.htm
    
  • please contact the “Natural Resources” and ask them to oppose HB-141
    

***IMPORTANT – We need to attend this hearing to show our opposition***

• HB-290 [Rep. Webb] has been….. WITHDRAWN!!

*** please note – Legislative status of HB-290 on the web page is not updated yet****

RIGHT NOW!!… please send Speaker Clark [Representative] a note thanking him for helping to keep the legislative process fair and open.

• dclark@utah.gov

Speaker Clark allowed a fair and open process. This is a good thing, and a rare one at that. The right process surrounding HB-80 will still be allowed to continue.

A quick [2] sentence note, thanking the Speaker for helping the fair process of HB-80 continue and asking for his support on the house floor. is all you need to send.

Please contact the committees ASAP!! Time is ticking, we need to act quickly!!

• Reflects a full and fair public process
  • HB80 is the best faith effort for a common ground compromise
  • Deserves a fair honest debate on the floor of the house.
  • Answers the questions that the Conatser decision left open  – it narrows the scope of the easement and provides the certainty all parties need to move forward;
  • Adopts the most widely accepted legal standard to define stream bed – Ordinary High Water Mark
  • Contains a number of voluntary concessions by anglers, including one that will significantly limit the number of recreational users using public water of private beds (the access stamp).
  • Supported by the DWR (Division of  Wildlife Resources
  • Places accountability on water users to know the law and it gives a defined boundary for all to know as to allow clear enforcement.
  • Strengthens trespass law and increases liability protection for landowners.

CONTACT YOUR REPRESENTATIVES NOW!!

Please contact the “Judiciary Committee” and ask them to SUPPORT HB-80

Rep. Lorie D. Fowlke, Chair – lfowlke@utah.gov
Rep. Jim Bird, Vice Chair – jbird@utah.gov
Rep. Sheryl L. Allen – sherylallen@utah.gov
Rep. Jackie Biskupski – jbiskupski@utah.gov
Rep. Francis D. Gibson – fgibson@utah.gov
Rep. Keith Grover – keithgrover@utah.gov
Rep. Eric K. Hutchings – ehutchings@utah.gov
Rep. Christine A. Johnson – christinejohnson@utah.gov
Rep. Brian S. King – briansking@utah.gov
Rep. Kay L. McIff – kaymciff@utah.gov
Rep. Kraig Powell – kraigpowell@utah.gov
Rep. Mark A. Wheatley – markwheatley@utah.gov

lfowlke@utah.gov
jbird@utah.gov
sherylallen@utah.gov

jbiskupski@utah.gov

fgibson@utah.gov
keithgrover@utah.gov

ehutchings@utah.gov
christinejohnson@utah.gov
briansking@utah.gov

kaymciff@utah.gov

kraigpowell@utah.gov
markwheatley@utah.gov

CONTACT YOUR REPRESENTATIVES NOW!!

Please contact the “Natural Resources” and ask them to OPPOSE HB-141

Rep. Roger E. Barrus, Chair rogerbarrus@utah.gov
Rep. John G. Mathis, Vice Chair jmathis@utah.gov
Rep. Melvin R. Brown melbrown@utah.gov
Rep. Brad L. Dee bdee@utah.gov
Rep. Jack R. Draxler jdraxler@utah.gov
Rep. Kerry W. Gibson kwgibson@utah.gov
Rep. James R. Gowansjgowans@utah.gov
Rep. Neal B. Hendrickson nhendrickson@utah.gov
Rep. Michael E. Noel mnoel@kanab.net
Rep. Patrick Painter ppainter@utah.gov
Rep. Phil Riesen priesen@utah.gov
Rep. Christine F. Watkins cwatkins@utah.gov
Rep. Ryan D. Wilcox ryanwilcox@utah.gov
Rep. Bill Wright billwright@utah.gov

rogerbarrus@utah.gov
jmathis@utah.gov
melbrown@utah.gov
bdee@utah.gov
jdraxler@utah.gov
kwgibson@utah.gov
jgowans@utah.gov
nhendrickson@utah.gov
mnoel@kanab.net
ppainter@utah.gov
priesen@utah.gov
cwatkins@utah.gov
ryanwilcox@utah.gov
billwright@utah.gov