GUEST opinion

Feb 5, 2010
by WLJ

Property rights are America´s sacred trust

Advocates for (Utah) Rep. Lorie Fowlke’s bill (H.B 80), “Public Access to Private Stream Beds,” are suggesting it is a good compromise. Nothing could be further from the truth for Utah’s landowners. Webster tells us a compromise is a basic negotiation process in which both parties give up something for something they want.

In this case, there was neither negotiation nor compromise. Access came by court decree affecting private property across the state, ranging from secluded brooks in Salt Lake City neighborhoods to creeks crossing ranches in San Juan County. The Utah Supreme Court in the Conatser case focused on a single word, “utilizing,” then elevated recreational entitlement above property rights for “wading, hunting, fishing, and any legal activity” related to the state’s waters.

Farm Bureau has “remained entrenched,” but only after a year-long discussion and debate process that ended in member policy being adopted by 128 delegates in November 2009. This policy represents more than 27,000 member families and, more importantly, property owners in every county of the state who told us to protect the sanctity of private property rights in Utah.

Farm Bureau joins the nation’s founders in a strong belief that protecting property rights is fundamental. John Adams, second president of the United States and signatory to the Declaration of Independence, warned, “The moment the idea is admitted into society that property is not as sacred as the laws of God and there is no force of law and public justice to protect it, anarchy and tyranny commence.”

Under Utah’s Constitution, legislating the laws of the state is explicitly the responsibility of the elected representatives of the people. In Conatser, the Court usurped the authority of the legislature by “establishing [their] own rule.” State senators and representatives answer directly to the people. Supreme Court Justices do not. Conatser defined streambed access judicially, not legislatively!

Utah water law explicitly requires rights to be established by putting water to beneficial use, not a decreed right. Utah law contains no statute that provides for a recreational use of the state’s waters.

The Court ignored the fact that property owners for generations have paid and continue to pay taxes on private property these streams cross. These rights are long established within legal deeds and property descriptions. Article I Section 22 of the Utah Constitution says, “Private property shall not be taken or damaged for public use without just compensation.” This ruling was a taking—if not of property, then certainly of value.

The Court effectively assaulted private ownership and constitutional protections. Whose property is safe from future public encroachment or entitlement in the future if constitutional protections are ignored?

There are numerous legal flaws, including no streambed definition, that have led to the current legislative debate on Capital Hill. The Court did warn recreationists of potential injury to landowners when they provided their narrow recreational easement specifically to touching the water’s bed for when wading or swimming— therefore “wet-feet.”

Farm Bureau is concerned Fowlke’s bill to expand this recreational easement to the high water mark is about popularity, not principle. Utah has more than 75 percent of its land government owned and open to the public. In this open access environment, we must be careful to preserve our limited private property rights.

There are market-based recreational opportunities like “Walk-in-Access” and the Cooperative Wildlife Management Unit program that provide access to private property. Farmers, ranchers and other private landowners who invest in habitat, including streambeds for fishing, should be able to sell that opportunity. Adam Smith, author of The Wealth of Nations, tells us property as a right is a belief central to capitalism.

Providing economic opportunities for access to private property ultimately offers incentives for healthy streams and may help preserve a new generation of farmers and ranchers. — Randy N. Parker, CEO, Utah Farm Bureau Federation