DO NOT GIVE UP YET…CONTACT THE GOVERNOR!

March 10, 2010 in article | No comments

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:

Governor’s Office Economic Development

GOED (Governor’s Office of Economic Development)

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

Utah Tourism Industry Coalition

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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.