March 2010

Gov. Gary Herbert signed a bitterly contested bill Wednesday that could restrict fishing and recreation access to some streams that cross private land, saying he believed it will foster negotiations in a clash over public water rights and private property.

“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.

CONTACT THE GOVERNOR!.. hurry, we have little time to do so!!

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

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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.

A sad day for Utah’s fisherman, Representative McIff’s unconstitutional House-bill somehow passes the Senate.

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

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}