GUEST opinion

Mar 26, 2010
by WLJ

Utah Legislature stands tall for property rights

Since the Conatser ruling in 2008, the Utah Legislature has struggled with balancing private property rights and recreation rights. The Conatser ruling came as a shock to property owners whose lands had been protected for more than 100 years. The court’s recreational easement on private property established a burden on landowners that lacked historical foundation and has adversely affected landowners across our state.

In testimony before the Legislature, landowner after landowner offered examples of abuse of their private property by recreation enthusiasts. A rancher along the Provo River documented more than 250 trespassing anglers and rafters in just a six-day period climbing a six-foot gate to cross his private bridge. Tired of finding human waste behind every bush, at personal expense, the rancher was compelled to bring in portable toilets. Trespass, escalating disregard for private property, and declining property values demanded legislative attention.

Article I Section 22 of the Utah Constitution says, “Private Property shall not be taken or damaged for public use without just compensation.”

The Supreme Court recognized they had established a burden on landowners, admonishing anglers and other recreation interests that their injury to private property should be no “greater than necessary for the effective public enjoyment” of the easement. The result is clear; property owners are expected to absorb some undefined level of public injury related to the court-decreed recreational easement.

Pointing out the difficulty in squaring the court’s decree and the “no damage” provision of Utah’s Constitution, Rep. Kay McIff and Sen. Dennis Stowell drafted legislation HB 141, “Recreational Use of Public Water on Private Land.” HB 141 embraces constitutional protections for landowners, while recognizing legitimate recreational easements do exist on some non-navigable Utah streams based on historic use.

Knowing that placing common sense restrictions on the expansive Utah Supreme Court ruling would not be popular, a bi-partisan majority of senators and representatives overwhelmingly passed HB 141, placing principle ahead of popularity.

Recreation interests argued they should be allowed to wade in brooks in people’s backyards that don’t have enough water to float an inner tube or to keep a fish alive. Others suggest the public should have access to every trickle of water 24 hours a day, seven days a week regardless of neighborhood safety and privacy issues. Some said HB 141 is unfair to anglers who generate $386 million dollars to Utah’s economy. Certainly, this is a significant contribution.

On the other hand, it is important to note Utah’s farms, ranches and food-related industries generate more than $15 billion in economic activity which employs nearly 70,000 Utahns. This, too, is significant.

More than 75 percent of Utah is government-owned and open to public access. Some 17,000 miles of streams are open and readily available for recreation activities. In Utah’s open access setting, policymakers must be careful of excessive entitlement. All navigable waters and all streams on public lands have been and continue to be open to the public for all recreational activities.

Farm Bureau commends the Legislature for defending historic and constitutional protections on Utah’s limited private property. There are approximately 5,000 miles of non-navigable streams that cross Utah’s farms and ranches. While some streams don’t sustain fish, some great fisheries are located on private property because landowners, at personal expense, have developed fish habitat.

There are market-based solutions like the Cooperative Wildlife Management Units program that provides access to private property. Farmers, ranchers and other landowners who pay property taxes on their streambeds and invest in wildlife habitat, including habitat for fish, should be able to sell that recreational opportunity. Farm Bureau believes HB 141 is a balanced approach to this complex property rights issue. HB 141 will provide a broader range of economic opportunities for private property owners, incentives for healthy streams, and may help preserve a new generation of farmers and ranchers.

We ask Gov. Herbert to sign HB 141. — Randy Parker, CEO Utah Farm Bureau Federation