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Angler 'compromise' would be a taking

Published March 1, 2014 1:01 am

This is an archived article that was published on sltrib.com in 2014, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Here we go again. We're hearing about "common sense" and "compromise." Rep. Dixon Pitcher's HB37 is neither.

The Public Waters Access Act provides pieces of the Supreme Court's Conatser decision and 2010's HB80 that Rep. Lorie Fowlke offered as a compromise. What both the Conatser decision and HB80 had in common was they took or devalued a right in property ownership protected under the Utah Constitution without "just compensation."

The court and anglers continue to ignore the fact that for generations, property owners 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."

HB37 under the Utah Constitution is nothing less than a taking.

The Utah Legislature in 2010 discussed and debated the issue, asking the question "Is there any level of intrusion into property rights justifiable for recreation interests?" The answer came back that any intrusion is a diminishment or damage to the fundamental right to property.

Members of the Utah Farm Bureau join with 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."

HB37 would simply unwind what the Utah Legislature did after days, weeks and months of deliberation and in essence through public policy invite an invasion of privately held properties, while simply disregarding constitutional protections.

This is not a compromise. For there to be a compromise, the parties have to come together and, through a process of give and take, come to an understanding. The property owners of Utah were not invited into a discussion on HB37. Our concerns were — and continue to be — ignored.

In 2010, there were two competing bills that offered diverse views and legislative recommendations. The Utah Legislature addressed an invitation from the Utah Supreme Court where they did not offer legal underpinnings for "establishing their own rule," which resulted in a recreation expansion onto private property. In 2010 HB80 offered an "Idaho compromise" that our elected representatives and senators didn't agree with.

So how is it somehow different a few short years later? It seems both the court and HB80 looked at some kind of public entitlement when the water runs across private property.

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

The United States 5th Circuit Court of Appeals found in Parm vs Shumate (Louisiana 2008) that "although an owner must permit running waters to pass through his estate, state law does not mandate that the landowner allow public access to the waterway." As in Louisiana, there is nothing in Utah state law that mandates recreational access to privately held streambeds. To the contrary.

Property owners including farmers, ranchers and some of your neighbors purchased property with streams passing through. Current Utah law recognizes these Utahns have been paying taxes on those properties and have a right to determine their use. As for the water, current law continues to authorize the citizens' right to float on the state's waters, even across privately-owned streambeds.

Utah already has more open, public land than 47 of our sister states — with more than three-fourths of Utah government owned. In this open access environment, when is enough open public access enough? How and when do we protect private property rights? Do we ignore basic property rights when it belongs to someone of wealth? Of course not!

Adam Smith, author of "The Wealth of Nations," tells us property as a right is a belief central to capitalism.

Randy N. Parker is the chief executive officer of the Utah Farm Bureau Federation.