# MAR 6 Update on HB 187



## dubob (Sep 8, 2007)

This is good news - I think. The bill came up at about 3:35 PM and the discussion lasted about 33 minutes at which time it was circled yet again.

In the 33 minute discussion period, the 3rd Substitute bill and one amendment were approved. The biggest change in the 3rd Substitute was in the area of the Boards authority and responsibilities. The attempt was to make the board a policy making board vs. an advisory board. It also set up the changes in the list of open waters to occur once a year and to be in effect in line with the fishing proclamation effective dates.

The amendment added 11 more public water sections to the 30 already listed in the 3rd Substitute for a total of 41. But an error was discovered and revealed that one of those 11 added did NOT have any public access, so it will be removed with a further amendment on Monday.

Mr. Draxler tried to amend the bill with a one word change which was the substitution of the word 'and' with the word 'or' at the very end of line 387. That motion to amend was defeated.

So there you have it. This bill will probably come up again on Monday. The House session will commence at 9:00 AM Monday morning. Have a great weekend and keep those cards and calls flowing.


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## blackdog (Sep 11, 2007)

I think the whole list thing is pure BS. 

What is the criteria for a river to make the list? One that doesn't run through Ferrys or any of his buddies property?


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## .45 (Sep 21, 2007)

I would like to know which river is coming *off *the list next Monday....


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## Catherder (Aug 2, 2008)

.45 said:


> I would like to know which river is coming *off *the list next Monday....


I heard that it is a river stretch that has no public access points, thus not a stretch that can be accessed now anyway. Thus no big deal.

It does however, show the haphazard nature of "the list". This is one of the biggest weaknesses of 187 and is why I have serious doubts that it can stand full scrutiny in court. (Either by anglers suing for more streams OR by landowners wanting streams off the list.)


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## Guns and Flies (Nov 7, 2007)

I agree the list thing is bad.


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## riptheirlips (Jun 30, 2008)

Been reading all the comments concerning HB187 and I would like to thank everyone who is working so hard to keep this from passing. I have email Congressman Gibson who voted for this bill and asked him to reconsider his position on the bill at least until ALL parties could sit down and attempt to write a bill that could please all rather than just Mr. Ferry's personal interest. I have emailed him previous and he does not respond back so I do not expect him to change or respond this time. At least he will know everyone is not in favor of this bill. Once again thanks to all for your hard work.


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## Theekillerbee (Jan 8, 2009)

riptheirlips said:


> I have email Congressman Gibson who voted for this bill and asked him to reconsider his position on the bill at least until ALL parties could sit down and attempt to write a bill that could please all rather than just Mr. Ferry's personal interest. I have emailed him previous and he does not respond back so I do not expect him to change or respond this time. At least he will know everyone is not in favor of this bill. Once again thanks to all for your hard work.


I have sent Rep Gibson several emails, and he only responded to one. Really gave a lame excuse on why he is voting for it. I've done my best to be polite to him, but his attitude sure has made me decide who I am NOT voting for next election cycle.


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## dubob (Sep 8, 2007)

Here is the bio information from Representative Gibson's web site (http://le.utah.gov/house/members/bios.asp?id=6). Judge for your self why he is FOR this abomination of a bill.

Education: Dairy Herdsman Degree, Utah State University

Profession: Dairy and Crop Farmer

Recognitions and Affiliations: _*Recognized as "Top Young Farmer" in the Nation 2001; American Farm Bureau (board member); Farm Service Agency Committee (chair)*_ (Emphasis added)

2009-2010 Legislative Assignments: Natural Resources Appropriations Subcommittee (Co Chair); House Political Subdivisions Committee; House Natural Resources, Agriculture, and Environment Committee

Legislative Service: January 1, 2005


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## Theekillerbee (Jan 8, 2009)

That makes a little more sense on why he is voting on a broken bill. He still isn't going to get my vote, young farmer of the year or not!


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## rjefre (Sep 8, 2007)

Don't expect Kerry Gibson to veer from the platform of the Farm Bureau. He is firmly entrenched in their idealogy. Too bad he didn't represent his constituents on this. I know a few folks in his district, they called, wrote emails, talked to their neighbors, and didn't find anyone that supported his stance on HB187. Poor representation right there.
R


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## TLB (Jul 13, 2008)

Well I copied and pasted all the reps that voted against this the first time, figured it can't hurt right. I got responses back from Marie Poulson, Jay Seegmiller, and Evan Vickers indicating that they are going to vote against this bill. Hope this helps! Mr. Seegmiller and Mr. Evans both also took the time to reply that they do not feel this bill is addressing each groups concerns, and that they would like to see more time and effort with all parties involved to come up with a more solid bill.


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## Dead Drifter (Nov 22, 2008)

I've thought this over at least 5 times (as Huge29 points out) and can't think of anything that would really make "most" of the landowners happy. I do feel that most river and stream receationists feel they were left out of the input for the bill. That's one sore spot. I think there are some anglers who feel they should have access to all public waters. I feel there are landowners who feel they should be able to shut people totally out. Those two groups may never be satisfied.

MY suggestion is this: The Conatser versus Johnson ruling has not even had time to be tested. I would like to see another year of letting this ruling stand with the definition of "staying in the stream bed" interpreted as below the visable high water mark. Recreationaists must enter private property through the public easement. Most of us lazy type are not going to wade 3 or 4 miles into a stream area from a public easement that far away so that will limit it to only those who are willing to hike that far. Which I think will eventually thin out the numbers. I think from that start recreationists and landowners who feel threatened by someone standing in a river can meet and work out the differences. This may be as simple as a landowner with a long stretch of river property allowing a section to be available where a public easement exists up until the stretch actually nears his home, summer home, cabin etc., in some instances. Things like this would take time to identify and work out.

The other option would be to continue to work with a group similar to the Blue-Ribbon Advisory and identify landowners who are willing to allow part or all of their stretches through private property to be utlized by a funding contract (I know that doesn't set well with some anglers). This would allow a compensation to the landowner for access, and then angling groups can monitor the trash and behavior and help in maintaining that stretch of water.

My gut feeling to all of this, is that with time, you would find that some areas of concern would just be left alone by the angling community and landowners wouldn't have much to worry about.

I would like to study Idaho's simple law and see if they have confrontations and issues. Their law is simple to understand. The 15 page Utah manifesto just seems to be a nightmare to enforce to me.

Sorry to ramble.


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## rstrouts (Jan 29, 2009)

Dead Drifter said:


> I've thought this over at least 5 times (as Huge29 points out) and can't think of anything that would really make "most" of the landowners happy. I do feel that most river and stream receationists feel they were left out of the input for the bill. That's one sore spot. I think there are some anglers who feel they should have access to all public waters. I feel there are landowners who feel they should be able to shut people totally out. Those two groups may never be satisfied.
> 
> MY suggestion is this: The Conatser versus Johnson ruling has not even had time to be tested. I would like to see another year of letting this ruling stand with the definition of "staying in the stream bed" interpreted as below the visable high water mark. Recreationaists must enter private property through the public easement. Most of us lazy type are not going to wade 3 or 4 miles into a stream area from a public easement that far away so that will limit it to only those who are willing to hike that far. Which I think will eventually thin out the numbers. I think from that start recreationists and landowners who feel threatened by someone standing in a river can meet and work out the differences. This may be as simple as a landowner with a long stretch of river property allowing a section to be available where a public easement exists up until the stretch actually nears his home, summer home, cabin etc., in some instances. Things like this would take time to identify and work out.
> 
> ...


An example of your "other option", that is, a walk in access program, is one of 3 access/use ideas I am presently advocating for here in Colorado. It is the Colorado Division of Wildlife, presently hunting only, Walk In Access Program and I have asked the CDOW to consider expanding the program to include fishing.

It can be viewed at wildlife.state.co.us/hunt/WalkInAccess/ .

Also, "Idaho's simple law" may be a good one but it's not quite as simple as originally portrayed in another post elsewhere. Rather than 3 paragraphs, it is longer. See http://law.justia.com/idaho/codes/36ftoc/36016ktoc.html

Another option to the Access Board is a "Navigable Streambed Adjudication Commission" that determines whether a body of water is navigable or non-navigable, pure and simple. A model can be found at http://www.azstreambeds.com/ This type of commission, or "board", is yet another example of the haste in which 187 was written and developed. This commission may or may not work in Utah but it should have been considered as an alternative prior to introduction of the bill.


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## dubob (Sep 8, 2007)

The Board Members are picked by the Governor from recommendations made by different entities. As I see it, the board is stacked in favor of the private property owners. Here is the makeup of the board according to HB 187. Each entity will have one member on the board. The General Public member will be picked by Governor and could go either way, so I'll call that one neutral for now. The other neutral member would be the DWR based on the public stance they have published so far. So that leaves us with 4 very pro land owner members which would be Agriculture, the Ag Industry, Real Estate, and Conservation Districts. On the recreational side we would have Parks, Fishing, and the Guides. It takes 5 members to have a quorum and a quorum majority to pass or fail an action. I think it safe to say that the 4 land owner members will almost always be at any action meeting. If the general public member were also a land owner supporter, there would never be water added to the list.

The second board problem has to do with the fact that the board does not have to act on an application to either add to or subtract from the recreational water list. The bill is written such that the board MAY act but they don't have to. Even if the application meets all of the required criteria. The proper wording would be to the effect that the Board SHALL act. There is a tremendous amount of legal difference in those two words.

About that list! The court ruling said ALL water belongs to ALL people. Property owners can not give up something they never owned to begin with even if they thought for the last 100 years they owned it. The private property owners do not, have not, and will not own the rights to public water flowing through their private property. They do not now and they have not in the past ever had the right to prevent the public from using the water for recreational purposes to include touching the stream bed in pursuit of that recreation. The court also said that the navigability of the water is irrelevant to the issue. So why does the bill define navigable? It is not relevant. The list is starting from the wrong side of the equation. The list should start as a blank list to which restricted waters will be added by the Board as applications meeting all the criteria to have a specific water removed from public use are received.

And finally, this bill should come up with a clear and precise definition of just exactly what constitutes the stream boundaries. The high water mark seems to be the standard accepted by a majority of most people you talk to. Any use at or below this boundary would be legal. Any use above that boundary would be trespassing. This boundary is easy to understand, easy to follow, and easy to enforce.

There's more, but I've gone on enough for now. :mrgreen:


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## Fishrmn (Sep 14, 2007)

dubob said:


> About that list! The court ruling said ALL water belongs to ALL people. Property owners can not give up something they never owned to begin with even if they thought for the last 100 years they owned it. The private property owners do not, have not, and will not own the rights to public water flowing through their private property. They do not now and they have not in the past ever had the right to prevent the public from using the water for recreational purposes to include touching the stream bed in pursuit of that recreation. The court also said that the navigability of the water is irrelevant to the issue. So why does the bill define navigable? It is not relevant. The list is starting from the wrong side of the equation. The list should start as a blank list to which restricted waters will be added by the Board as applications meeting all the criteria to have a specific water removed from public use are received.
> 
> And finally, this bill should come up with a clear and precise definition of just exactly what constitutes the stream boundaries. The high water mark seems to be the standard accepted by a majority of most people you talk to. Any use at or below this boundary would be legal. Any use above that boundary would be trespassing. This boundary is easy to understand, easy to follow, and easy to enforce.


Dubob, you've said a mouthful there. My sentiments exactly. They want back, that which they have never had the legal right to in the first place. Start with an open stream policy. And if, and when there is a problem area, then let the "board" weigh few options. They could increase law enforcement patrols, increase signage, reminding users to respect private property, and if needs be, close some stretches of streams. There is no privacy issue here. Their ownership of land that is bisected or bordered by a stream negates that.

Fishrmn


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## Catherder (Aug 2, 2008)

[I speak only for myself, but here would be what I would propose as a more suitable "compromise" bill. The bill would set a standard for flow that would allow public access. This can be accepted Federal navigability standards or the statehood commerce standards. (could a 10 inch log float down the stream in high water?) These standards are already somewhat defined in court precedent and existing legislation. (This is what Idaho has used with apparent good results for both fishermen and landowners). This would allow fishing in about all of the streams that have fish and a legitimate angler would want to fish, and would protect the landowner from some numbskull accessing posted private property by following a trickle of water onto the land. It would be fair to all landowner too. Currently, some landowners that have streams not on the list get "away" with denying access, but others with similar sized streams on the list cannot. It would stand scrutiny in court. Next, we need a definition of the boundary of the easement. (this should be the high water mark) Finally, a procedure requiring landowner permission for retrieval of game while hunting public water over private bed is needed.

This would be simpler than what Hb187 offers and would be uniformly fair.


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