Landmark Decision for Stream Access/Use in UT

FAOL Community Sound Off
1

Wasn’t sure where to put this, so I guess this is the catch all forum.

Last week the Utah Supreme Court ruled that all public waters that may flow through sections of private land, are now open (including the stream bed) to law abiding recreational users!

This is a HUGE decision for anyone who plans on fishing a stream or river in Utah in the future. Previously, the law stated that private land owners reserved rights to the stream bed underneath the water and while recreational users could float on the water, they could not touch the stream bed.

Due to a recent appeal from district court on a criminal trespassing charge (in Morgan County, UT on the Weber River) to the Supreme Court of Utah we can now fish miles and miles of previously closed water.

Personally, I could not be happier. Luckily I never experienced the wrath of any land owners, but only because I heard so many really bad experiences from other anglers and was too scared to push my luck. One stream in particular that I fished on a very regular basis was so difficult to fish because there were sections of the river that were public which were surrounded by private land. Anglers could get in and fish up to a certain point, but would then have to back track, get out and walk along the road to the next public access spot. There were also many land owners who would purposely dam up a stream to keep fish from moving freely throughout the water system.

My hope, however, is that users don’t abuse this privelige. While we can now access water that we previously could not, it does not mean that we now have a right to destroy and trash private (or public) land. If I was still living and fishing in Utah I would print this out and carry with me, just in case.
http://www.utcourts.gov/opinions/supopin/Conatser071808.pdf

This might be one of the biggest recreational laws passed in the history of the state.

2

Now if they will just re-open all the trails closed to users by Clinton/Gore all recreationists can be happy!

3

Heh, heh…that’ll be the day!

4

Very interesting decision. May leave a couple issues unresolved, but definitely a step ahead for wade fishermen and others lawfully utilizing the waters of the State of Utah.

Someone in Wyoming might want to take a good look at this decision and see if the controlling Wyoming decision might subject to challenge based on this Utah case.

5

What’s next, opening ALL land to hunters, hikers & bikers as long as they behave too? How about farm ponds or private lakes & reservoirs with inlets and outlets?

Sorry but I think private property should be remain private if the owner so chooses regardless of who wants to use what. It sets a very bad president IMHO regardless of what 250 year old no-longer-applicable laws apply. Let’s face it folks, navigability is a self serving excuse to pi$$ off somebody who doesn’t want to let you on their property. It isn’t the Mississippi we are talking about here; it’s some piddly little crick or shallow river that hasn’t been used for commerce since Wild Bill Hickok was in knickers and will never ever be used for commerce again so why those laws even apply any longer is beyond me. If you want to preserve rights of way for commerce than wrap your arms around preserving old railroad beds. In most cases those revert to the original deed holders upon abandonment; a much more sensible approach.

Here in PA a landowner can close a stream if they own the land and the waterway wasn’t declared navigable two zillion years ago (despite the fact I’ve NEVER seen a coal barge plying any local navigable waterways I fish). When I see what the slobs leave behind; the insanity of raft flotillas or how inconsiderate arrogant yahoos fishing in someone’s back yard can spoil someone desired serenity, it raises the hackle on my neck.

I have quite a few friends who are farmers. I’ve seen with my own eyes or have been told of cut and damaged fencing, gates left open in pastures, crops trampled, animal harassed or let loose where they can get in harms way, piles of trash, loud late night fishing forays and long rod wielding morons arguing with farmers over how they should manage their runoff. It’s no wonder so many of my old fishing spots are now posted. Jerks abound out there these days and despite the lofty opinion held by many that fly fisherman are above the fray; I’ve meet too many double taper jerks to convince me anyone is excused.

Private property rights should trump the intentions of Johnny Fly Guy IMHO and if you think access will stop with fisherman and rafters you are sorely mistaken. Doesn’t anybody else out there not blinded by the glare of a $400 fly reel find the prospect of government being able to declare anything they want as public property a wee bit unsettling? Isn’t it bad enough the government can seize your property to build a shopping mall? Maybe I should push to be able to camp in someone’s backyard because the land should be held in trust for the public too!

I personally will do whatever it takes to support my fellow PA landowners and their present rights to legally close their property if the same stupidity ever takes hold here in PA. There is plenty of water out there, just go fish someplace else.

The right way to insure access is to support programs that enable the government to acquire or lease private property instead of just declaring a free for all in the meadow because some whiners can’t fish or float where they want to. But unfortunately some of those acquisition options require folks to pony up some cash or raise some dough and may fisher-folk feel that their license fees and taxes should guarantee them access to everything everywhere.

Sorry for the rant but color me SOLIDLY AGAINST the issue of allowing undesired access on private property. I’ll give up fishing before I’ll give up my rights to do what I want with my land.

Fire away…

6

Bam -

It’s called “State’s Rights.”

Utah decided a long time ago that state waters would be available to be utilized for recreation, including the streambed, in lawful ways where no injury would be done to the adjoining property / streambed owner. Navagability is not necessarily an issue under Utah law, according to this decision.

Idaho has more liberal law. All navagable water is open to the normal high water mark, including the streambed. Navagable is generally defined as water that will float a log, something like six feet long and a foot in diameter, as I recall. Given the importance of the timber industry here, that made sense, and the law and the tradition stand.

Wyoming is one of the State’s whose Rights are still different. You can float but not wade, because WY law has to do with a “right of floatation” not a right to “utilize” the waters of the state, as in Utah.

Two points -

First, if you don’t like the “Law of the Land” you can choose to live in another State whose “Rights” you prefer.

Second, I completely agree with you about the problems a lot of landowners face with some intrusive, discourteous, abusive members of the public. A couple of my farmer friends have similar problems with people crossing their land, with or without permission, to get to the public waters.

But that doesn’t strike me so much as what the law is in a particular place. It’s more a matter of courtesy and responsibility at the personal level.

It hasn’t come up in Idaho or any of the other Western States, as far as I know, that private property rights are going by the boards, as you seem to think might happen in your neck of the woods. Hope it doesn’t really happen there, or we will have the rant of all RANTS, right ??!! ( I’ll even join in on your side of that rant. )

John

7

What is sad (and true) about what you describe bam as farmers who have their private property destoryed or otherwise tampered with is ALREADY HAPPENING. I for one would think that at least some of those folks who are climbing and breaking fences, destroying crops, etc would be able to avoid climbing those fences causing that damage if it is now legal to continue wading up the streambed which the farmer isn’t using anyway.

The bottom line argument in my eyes to the destruction of property you describe, is that it is going to happen whether it is legal or not. By opening up stream beds which were previously unaccessible to recreationalists, there will not (IMO) be any further damage done to private property than what is already being done.

While I would still respect the land owners rights and property, I do understand that not everyone else will. But even if it is not legal, the folks who are destroying that property are going to do it anyway.

8

You can bet there will be more case law to come on this one. Most of us can see both sides and we all wonder where the line will be drawn between the good of the public and the rights of individual property owners.

On one side you have the public’s interest where the state is considered to own resources that go through private property. On the other side we all want control over the property we own and care for. Who wants to improve their property then standby and watch the public damage the property. Of course that happens all the time.

For instance utility easements, sidewalk easements and even condemnation of property are frequently implemented for the good of the general public. In the case of sidewalks and utility easements the owner is responsible for maintaining the property and allowing access whether they like it or not. In Utah it sounds like streams including the streambed will be treated like sidewalks. Ever have a dog crap on your curb or someone leave trash on your lawn or even have someone damage your shrubbery. I just had my lawn and driveway dug up by the local cable company. I argued but they have the right of access and they did a lousy repair job. In mine and another local township property were condemned for use as golf courses. It was deemed important to the local population & economy and lawfully obtained. So forcing limitations on property ownership is nothing new it just continues to evolve as resources become scarcer. What happens if property owners increase their use of streams to provide power to their homes and vehicles? Hydro power is the cheapest of all but it can warm the water and divert flows.

So my question is why should streams be treated differently then something like sidewalks where the property owner must allow limited access without obstruction and accept the fact that a certain amount of wear and tear will occur?

9

I see this as a good step.

I have property on a couple of rivers in Alberta that have good trout populations. We have people litter and break and generally abuse what they consider a right. I hate it. I’m also selfish and want those water to myself (although I’ll share and freely give info to people I think as deserving). It’s my river.

On the other hand, I work for the gov’t (Canadian), and more relevent I work with protecting public fisheries. Gov’t ownership of rivers to the normal highwater mark has protected many, many, fisheries from being destroyed. I don’t believe landowners should have the right to do what they want to the water, especially where it can affect downstream or previous users. Anything that can affect a public resource or right, should be governed by the gov’t (or at least a governing body).

Hopefully, as angler access increases (and idealistically not pressure), people will begin to report trouble makers and the anglers themselves will take it upon them to start cleaning up the garbage. I carry a garbage bag when I fish, for that reason.

10

Wild One:

Part of the problem with farms & ranches is you can’t avoid fences. As long as you need fences to keep livestock in; somebody with permission will have to open a gate and REMEMBER to close it behind them to enter a pasture and SHOULD leave the same way. But of course there will always be lazy people who won’t feel like walking 100 yards or a mile or more to a gate and will climb or cut a fence, or cut through a field of crops to get where they want to fish. Maybe the Utah lawmaker’s will force them to put in a few extra gates to make it convenient for the fisherman. :rolleyes:

One creek I fish has an electric fence right across it. It is a property I have permission to fish yet the obstacle remains because it is needed to direct the cows to an adjacent pasture on the other side of the creek and to keep them from downstream areas which are not the farmer’s property.

The bottom line here is if I was less conscientious or lazy I would possibly consider cutting or climbing the fence rather than walking the mile to get around it and downstream. Of course knowing it’s electric is a deterrent too! :wink: But I also figure that I am the only guy the farmer lets fish there because somehow I know if more people had access, that fence would be trashed because walking around it is a real PIA.

I guess I just have no faith that good behavior will prevail when there are so many lazy people out there.

Maybe when all of the shopping carts at the market are placed back in the cart corrals instead of two feet away against a curb; maybe when all of the empty beer cans & water bottles end up in the trash not in the bushes; maybe when I no longer see the empty worm containers and hook packages lying on the stream banks; maybe when the discarded tippet spools and strike indicators end up in the angler’s pocket for the trip home instead of being “accidentally” left on the bank or dropped in the water; maybe when I hear thank you being said as many times as I say it to show my appreciation…

…maybe then I’ll be a believer too.

But until that day; I know there will continue to be destruction of property whether it’s legal access or not because some folks just don’t care and I will continue to consider it wrong to force a private landowner to endure it just because it’s the law.

Access to private property shouldn’t be considered an entitlement just because you are a “public”; it’s a privilege that should be earned by asking and showing respect for something that doesn’t belong to you.

I’m glad I live and fish in a state that still understands that.

BTW - Sears is having a sale on wire cutters! :wink:

Good fishin’ fellas!

:slight_smile:

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11

Bam,

I have to disagree with you on the access to the water. NO ONE should have the right to own a stream bed NEVER!!! I will agree with you that there are A LOT of SLOB FISHERMAN who don’t care about anything and trash away all the time.

But while there are alot of slob fisherman, I don’t agree with allowing cattle to enter that water either. Their pee and poop (a nice way allowing as this is a family oriented board) is just as bad as the trash the slobs drop all over the place.

I know people own land but as I said NO ONE should be allowed to own any stream bed. Put up a fence on the edge of the stream or river where you own it and if someone breaks it, put em in jail. I dont’ believe in trespassing and if I want to try and fish someplace I’ll ask the landowner for access.

Fatman

12

[QUOTE=Bamboozle;242998]

I have quite a few friends who are farmers. I’ve seen with my own eyes or have been told of cut and damaged fencing, gates left open in pastures, crops trampled, animal harassed or let loose where they can get in harms way, piles of trash, loud late night fishing forays and long rod wielding morons arguing with farmers over how they should manage their runoff. It’s no wonder so many of my old fishing spots are now posted. Jerks abound out there these days and despite the lofty opinion held by many that fly fisherman are above the fray; I’ve meet too many double taper jerks to convince me anyone is excused.

QUOTE]

In general, it’s the changing of how private property is treated that makes me uneasy. Each state has it’s laws for private property, but in my mind when you start changing that too much it opens the door to all sorts of injustice. Like some of the recent (within the past few years) examples of long standing houses in good condition being condemned for shopping malls and real estate developments.

And while I agree that it’s not a good move to argue with a land owner while fishing through their land, I also don’t think farmers have the right to just let whatever runoff flow off their land. If the runoff stayed only on their land or their portion of a stream, that might be one thing. BUT, too much runoff with too much bad stuff can literally have horrible effects a thousand miles away on large numbers of people.

Just my $.02

13

Fatman:

Why shouldn’t anybody be allowed to own a streambed? Is it just because we want to fish there? What about a lake or pond or reservoir or other private bodies of water. I guess we should open them up too? Why is just moving water important? If it’s because of some antiquated laws can someone explain why it is important to keep those laws in place? Does it benefit the public at large or just the segment who wants to fish there?

If access is REALLY all about maintaining access to the actual water that flows, that could easily be protected by passing laws against obstructing or diverting the flow to downstream public areas. That could be done without permitting fishermen to traipse all over someone’s land without permission.

No access is just another self serving cause celeb created by fishermen who care more about their imagined rights than the owners rights because they want to fish where they can’t. It’s nothing new, it’s sort of like the kid that only wants the Hershey bar because his parents said no.

It also been turned into a classic class struggle with many of the most vehemently in favor of access being those who are the most envious of people who can afford to own and post property, or charge to fish it. :shock: Somehow I bet the outrage would be non existent if the cost of the land or fees to use it were less than a price of a Hershey bar.

As for me it’s really simple, I just don’t want someone on my land who is uninvited and if the laws grant that access where I live I’ll fight it or fight to be able to have a picnic in the backyard of someone who wants to fish in mine.

It’s the exactly the same thing to me and worth fighting against. And if all the fishermen in world stand on that side of the fence I’ll quit fishin’ and go back to golf.

Somethings are more important to me than torturing a trout for personal glory or self imposed righteousness. I don’t let fishing cloud my thoughts as to what I believe is the right thing to do and personal property rights to me are more important than fishing ever will be.

Think about how you would feel if a bunch of hunters won the right to hunt in your backyard because the “game belongs to the people” or some other nonsensical 200 year old law or excuse. That’s the problem today. People don’t put themselves in the other guy’s shoes. I lose the ability to fish a creek; the landowner loses the right to his privacy and solitude not to mention what ever else he has to endure on a piece of property HE bought & paid for!

To me that’s a no-brainer. I’ll leave him alone and fish someplace else.

JMHO and I could care less who is on my side.

14

Bam -

With all due respect to your very clearly stated opinions, the laws you are talking about existed for a long time before fly fishing became popular, and were maintained by an interested public, the legislatures, and the courts over the years before fly fishing, or any other kind of fishing, raised any issue of access.

There is some irony that you live in a state where the laws apparently still favor the landowners rights to limit access and you have a variety of issues with the public causing problems, and I live in a state where access ( within the usual high water mark on all navagable water in the state ) is a right as a matter of law, and there are very few of the problems that you pointed out in your original post in this thread.

There is a major distinction to be made regarding the history of water and waterways in the east and those in the west, and the laws pertaining to water and water usage. Those laws generally reflect the reality that east of the 100th meridian, there is enough annual precipitation ( 20 plus inches, I think it is ) to support a broad based agriculture, and west of the 100th meridian, there is limited precipitation and water rights are accorded on a “first in time is first in line” and “use it or lose it” basis. There are many very interesting books on the subject of water in the west. Perhaps reading some of that history would give you a different view of water rights and useage ( regardless of access issues for fishermen ) out here.

It is fortunate that you live in a state that favors the rights you prefer, although you also seem to have more reasons to complain about the situation in your state, and I live in a state that favors the rights I prefer, and where there are fewer reasons to complain. I think I can honestly say that I would prefer the rights we have here in Idaho and Utah, and in a somewhat limited way, Montana and Wyoming, whether I fished or not. Maybe that’s just a regional preference or prejudice, having been born out here.

There is another major distinction to be made between east and west - in the form of a question, how much public land is there in your neck of the woods ?? compared to a large portion of the lands of the west being public. Maybe we just don’t have the reasons to fear the take over of private lands that you have because there is generally, more than enough room for everyone ( excepting, of course, parts of California which is in the west but not really the West, and maybe some parts of Texas, where the same thing could be said ).

Getting back to how we feel in this neck of the woods ( I guess more like the deserts and mountains than woods ), its appropriate for us to applaud the Utah Court decision as westerners, and leave the people in the east to be concerned with their own laws, rights, and concerns.

John

15

John:

I guess if what happened out west, stayed out west I really wouldn’t care…

…but it doesn’t.

:wink:

16

All this make me wondering about something?

Codes dictate just how close and the type of septic systems
near streams for human use. As well as other types and uses
away from water supplies…

Are land owners allowed to let their animals graze near streams?
Poop & Pee in or near streams?
as to allow this run off directly untreated in the water?

This would not be logical at all… There must be some type of
boundary the land owners animals must remain away from the stream
other wise would it not foul the water…and not just on the land owners
property.

I would raise all kind of hell if this was spilling over into my areas.
I know naive I am but:

Can someone straighten me out on this?:confused:

17

I don’t know how many times I have been startled by cows when fishing. I’ve only once fished a stream in UT that was on private property and the cows were all over it.

Other rivers I’ve fished there are BLM land (I believe-but could be National Forest land) where cows grazed and deficated in and near the water…

Pretty common, out west anyway.

18

Disgusting , simply disgusting…:confused:

19

Seems to me a new law should be proposed and passed to have land owners and/or lease holders adhere to a grazing access setback that would be strictly enforced
with a stiff fine and cleanup costs.

Would this not be a great benefit to the erosion problems and the environment
at the same time. Setback rules as one knows is nothing new to property
owners.

Geese a little common sense here !!!:mad:

20

One solution to persons not closing gates is a stile or Kissing gate.
Stiles are basicly steps going up and over the fence. Sometimes just a ladder built into the fence.

http://en.wikipedia.org/wiki/Kissing_gate

More common in the UK than over here , but practicle as all get out.

At princeton airport we had people breaking down the fence all the time til the airport manager built a stile over it. Problem solved.