# HB80



## fishsnoop (Apr 3, 2009)

http://le.utah.gov/~2010/bills/hbillint/hb0080.pdf

New bill has been numbered.


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## Grandpa D (Sep 7, 2007)

Well, here we go!


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## Catherder (Aug 2, 2008)

Chris, 
It looks good to me on my "first reading". The portage provisions look cleaned up. What do you think?

Also, do you know yet if there will be a competing bill from the Ferry/ McIff crowd?


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## fishsnoop (Apr 3, 2009)

Catherder said:


> Chris,
> It looks good to me on my "first reading". The portage provisions look cleaned up. What do you think?
> 
> Also, do you know yet if there will be a competing bill from the Ferry/ McIff crowd?


Barry, I like it, aside from the annual certificate issue but that is a part of the compromise. If it was a one time issue I would be fine but oh well.
I have heard from several sources there is a bill being promoted by the other side but there has been absolutley no contact made by them to our side. Rep. Fowlke is the only one who brought everyone together several times to get to this point.


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## caddisguy (Sep 10, 2007)

Let the games begin with the emergence of HB-80; “Public access to private stream beds” sponsored by Representative Lorie D. Fowlke of Orem. This seems to be a reasonable follow-up to last year’s debacle of HB-187. After reading this preliminary bill, I find it the beginning of a good compromise between public access and private property rights. It allows public access below the high watermark if a “valid public access certificate” is obtained. Provisions in the bill address land owner liability, portage, fence construction, harassing livestock, harassing anglers, littering and a litany of other topics. It looks like Rep. Fowlke had a busy summer, thanks for the hard work and good luck as this progresses. Lots of people will be watching.


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## Troll (Oct 21, 2008)

I will not support this bill in it's present form and have sent a letter to my represenative stating such.

My problems are with the portage around "natural objects" as this makes it illegal to portage around waterfalls and trees blocking the streambed while fishing. This creates a very unsafe condition as an angler may attempt to portage around a natural obstacle such as a waterfall or tree and become injured.
I also have issue with the fence ruling. This is not clear enough as to establishing a minimum height above the "ordinary high water mark" that a fence may be placed and has no provision for marking the fence to warn recreators of it's presence.
I also do not feel that the oridnary high water mark is well enough defined. The term "terrestrail vegetation" is to vauge. Is mint and grass considered "terrestrial" both can and do survive under water. The term impression is also vauge, in the extreme the entire grand canyon is an impression made by the Colorado river.


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## Catherder (Aug 2, 2008)

Troll said:


> My problems are with the portage around "natural objects" as this makes it illegal to portage around waterfalls and trees blocking the streambed while fishing. This creates a very unsafe condition as an angler may attempt to portage around a natural obstacle such as a waterfall or tree and become injured.


Here is the clause.

(b) (i) A person floating on a public water in a boat, raft, tube, or other flotation device
156 may leave the bed on private property to which access is restricted to walk or portage around a
157 natural obstacle without permission if the natural obstacle poses a danger to the person and the
158 person is unable to safely navigate around the natural obstacle or retreat in the direction from
159 which the person approached the natural obstacle.
160 (ii) A person walking or portaging in accordance with this Subsection (4)(b) shall walk
161 or portage in the least obtrusive manner possible, leaving and reentering the private bed at a
162 safe point nearest to the obstacle.

My reading of this provision, would indicate that portage around these objects is allowed so long as it is done "in the least obtrusive manner possible, leaving and reentering the private bed at a safe point nearest the obstacle". The current Conatser ruling does not have stipulations for portage around natural objects, so I don't see we are losing anything with this language.



Troll said:


> I also do not feel that the oridnary high water mark is well enough defined. The term "terrestrail vegetation" is to vauge. Is mint and grass considered "terrestrial" both can and do survive under water. The term impression is also vauge, in the extreme the entire grand canyon is an impression made by the Colorado river.


There is a reason I got into the sciences and not law in college, I don't claim to have the sharpest legal mind, but I don't have a problem with the current definition, and OHWM is something our side has been pushing for. How would you improve it?


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## Troll (Oct 21, 2008)

Catherder said:


> Troll said:
> 
> 
> > My problems are with the portage around "natural objects" as this makes it illegal to portage around waterfalls and trees blocking the streambed while fishing. This creates a very unsafe condition as an angler may attempt to portage around a natural obstacle such as a waterfall or tree and become injured.
> ...


There is a reason I got into the sciences and not law in college, I don't claim to have the sharpest legal mind, but I don't have a problem with the current definition, and OHWM is something our side has been pushing for. How would you improve it?[/quote]
By removing the reference to vegetation and leaving it as a geological point not affected by vegetation that may or may not be present as vegetation can and will change with drought, animal usage of the stream and flooding. I included these suggestions in the letter to my represenative, I'm not against the bill 100%, but I don't think it is 100% yet.


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## Catherder (Aug 2, 2008)

OK, I see what you are saying about the flotation part. That is a valid point. I don't know how vigorous of a compromise that was, and that may be something we may yet get, but as it stands now with Conatser, when one hits a natural obstruction, you are done, so I don't see it as a deal breaker for me either. 

RE: "By removing the reference to vegetation and leaving it as a geological point not affected by vegetation that may or may not be present as vegetation can and will change with drought, animal usage of the stream and flooding."

I don't remember this language in the prior draft. (#5, or whatever it was) I don't know which side wanted this either. Perhaps Rep. Fowlke wanted to strengthen the definition of OHWM more than it was. It does warrant watching and possible tweaking, but again for me at least not a deal breaker. Whatever bill goes up for a vote will have numerous changes (good and bad) before it gets voted on. Good points though.


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## F/V Gulf Ventur (Oct 8, 2007)

Troll said:


> My problems are with the portage around "natural objects" as this makes it illegal to portage around waterfalls and trees blocking the streambed while fishing. This creates a very unsafe condition as an angler may attempt to portage around a natural obstacle such as a waterfall or tree and become injured.


This was a compromise... to try and make this Bill a win-win.


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## fishsnoop (Apr 3, 2009)

Troll,
Wading anglers do not need natural portage. Most any natural obstacle you find can be portaged within the ordinary high water mark. I am pretty sure you won't find a stretch of water on private stream beds that has a waterfall in Utah, so kinda a strange argument or worry.
Re: your thoughts or again worries about the definition of OHWM, if the mint or grass is covered by water what is the problem? Google OHWM see what the Army Corp of Engineers defines it as. The vegetation line is different than terrestrial growth.


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## Troll (Oct 21, 2008)

What about trees? If wading can you leave the waterway to go around them or not? If not, just wait till some angler tries to get through the tree and ends up drowning in the strainer, then what?
I know of waterfalls on private land near public access that this will apply to, Niagra they are not, they are also not any place that I would want to wade down.
Lets not forget disabled anglers either, what a 19 yr old considers an easy wade, a 69 yr old may want to walk around.
Is red stem dogwood a terrestrial vegatation? What about Grey stem? Cottonwoods? It dosn't matter what the Army corps says, this is a state law.

Conaster gave broad easment, any law written after that ruling will do nothing but weaken that easment, making any law concerning this issue a win-loss. The land owners won with the liability issue, to me that is the issue they should have won, nothing else.


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## Nor-tah (Dec 16, 2007)

I just really like that the new bill allows hig water mark wading. On most streams this means you can walk along the side instead of having to be in water up to your shnipples. Been there, done that!!


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## 280Remington (Jun 2, 2008)

Troll, for starters it's Conatser not Conaster. I suggest you read the court ruling. The Conatser decision did not give a "broad easement". Nothing can be further from the truth. Conatser continually uses the words "water's bed". Nothing more. The reason for HB 80 is because Conatser essentially remained silent on what it meant by "water's bed". Thus the reason the ordinary high water mark was put in the proposed legislation. It was to add clarity. Idaho and Montana both use this standard and it seems to work very well for them. 

In one of your posts you said HB 80 was not good enough because it did not address scenarios such as the Grand Canyon. Now you are saying HB 80 is deficient because it is age discrimination! According to you the bill favors a 19 year old, but not a 69 year old. My guess is Montana and Idaho also have natural waterfalls and those two states probably have anglers that are 19 years old and 69 years old. 

Troll, C'mon get real.


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## Troll (Oct 21, 2008)

280Remington said:


> Troll, for starters it's Conatser not Conaster. I suggest you read the court ruling. The Conatser decision did not give a "broad easement". Nothing can be further from the truth. Conatser continually uses the words "water's bed". Nothing more. The reason for HB 80 is because Conatser essentially remained silent on what it meant by "water's bed". Thus the reason the ordinary high water mark was put in the proposed legislation. It was to add clarity. Idaho and Montana both use this standard and it seems to work very well for them.
> 
> In one of your posts you said HB 80 was not good enough because it did not address scenarios such as the Grand Canyon. Now you are saying HB 80 is deficient because it is age discrimination! According to you the bill favors a 19 year old, but not a 69 year old. My guess is Montana and Idaho also have natural waterfalls and those two states probably have anglers that are 19 years old and 69 years old.
> 
> Troll, C'mon get real.


I suggest you re-read the supreme courts ruling, I re-read it this morning and am very familuar with what it says. Start at paragraph 22. http://caselaw.lp.findlaw.com/data/ut/c ... 071808.pdf

Don't worry I'll be real on Jan 15th and every day the legislature meets after. I have the right to protest and be against this all I want and there is nothing you or any one else can do about it.

Stand by for me to be real.
You can thank your self for now I am going to write each and every represenative in the state with my opinions and every senator.


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## 280Remington (Jun 2, 2008)

Troll, you must have missed page 1 which says Conatser and not Conaster. You must have missed the bottom of page 1 that talks about "privately owned beds". You probably didn't get a chance to read page 3 that discusses "beds of state waters". Maybe you missed page 4 that says ..."the water bed beneath". I am guessing you missed the synopsis by the Court on page 6 section B that discusses "touching the beds of state waters". It doesn't sound like you made it to page 7 where it clearly states "the public has the right to touch privately owned beds of state waters". 

Do I need to go on? May I suggest you read page 8 of the Court ruling...subsection 23 ..."touching the water's bed". Or again in subsection 25 ..."touching the water's bed". 

Troll, you have a constitutional right to agree or disagree with HB 80. But my advice for you is to get a little more well versed in what you are talking about. Conatser's definition is very very narrow. How can it be anymore clear to you, the Court did not define what "touching the water's bed" means. Is it the high water mark? Is it wet boot only? HB 80 attempts to clarify the Court's ruling.


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## Grandpa D (Sep 7, 2007)

Please keep the personal battles out of the thread.
You can disagree and that's fine but this is getting too hot between 2 posters right now.

Follow the posted rules and you will be fine.
Thanks,
Grandpa D.


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## fishsnoop (Apr 3, 2009)

Troll, Please tell me where these waters are that have falls near public access that one can not portage within the OHWM. If you mean those 2 footers then I don't know what else to say other than maybe try a bit harder. I don't want to sound harsh but I have a pretty extensive background regarding Utah waters and I have found no such water on private beds that creates this hazardous claim you make. 
Please do some research on OHWM and then ask some questions that make sense because what you have presented so far sounds a bit off. 
To write what you posted above about writing all members of the house and senate sounds more like a vendetta than an actual desire to finalize a resolution to a contentious matter. Please take a deep breath and re-think your actions. What is best, clarification or more wasted time and breath on something that considers all sides?


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## Troll (Oct 21, 2008)

Maybe your OK with a 2' drop into a 6' pool but I am not. Also, is a beaver dam a *natural* obstruction?

Read HB80 again, I am against line 87, 88 and 91, 92 and 93. Concerning OHWM. I feel that line 86 is all that needs to be in the law.


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## Huge29 (Sep 17, 2007)

Just on an unbiased view, this bill if passed would magnify the ruling to the detriment of private land owners, good, bad or otherwise...it is now no longer the river bed, but even around natural objects... Anyone to say otherwise.... :roll: 
Again, regardless of my personal opinion, where is this with the Farm Bureau group, etc.? Someone mentioned a compromise, should I read into that that two groups have come to an agreement or is this just a proposal of one side with what this one side views as a compromise? Either way, I see where the land owners are giving up access around natural objects..., but what is the "other group" giving up? I don't see the term where a true compromise has been reached...maybe I missed that part some where??


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## fishsnoop (Apr 3, 2009)

Troll said:


> Maybe your OK with a 2' drop into a 6' pool but I am not. Also, is a beaver dam a *natural* obstruction?
> 
> Read HB80 again, I am against line 87, 88 and 91, 92 and 93. Concerning OHWM. I feel that line 86 is all that needs to be in the law.


A beaver dam is a natural obstruction yet every beaver dam I have faced is still within the OHWM. Again I ask based on this;
lines 87 & 88

i. by covering the soil long enough to ordinarily deprive the soil of terrestrial vegetation;

can you personally not identify this??? or do you not understand what terrestrial vegetation is? Dogwood is, regardless of color, a terrestrial vegetation.

and

lines 91-93

is only explaining that if you can not identify the OHWM then you must be in the water, a great compromise to be able to allow law enforcement to have a definition to enforce. Examples of this would be something like Otter Creek in the "grass valley" from Koosharem Res. to Otter Creek Res.

I have been present at every meeting and also sat on the sub committeee for anglers regarding this issue. I do not need to re-read this bill, I have helped craft this bill with all sides present and having a voice. I am the stupid guy that did the tour with the legislators and the DWR amongst others to get this to where we are now. 
If you would like to email me and discuss this priately I am all in, or just pm me.


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## Troll (Oct 21, 2008)

My side was not present and I did not have a voice. 
But I will have mine now.


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## fishsnoop (Apr 3, 2009)

Huge29 said:


> Just on an unbiased view, this bill if passed would magnify the ruling to the detriment of private land owners, good, bad or otherwise...it is now no longer the river bed, but even around natural objects... Anyone to say otherwise.... :roll:
> Again, regardless of my personal opinion, where is this with the Farm Bureau group, etc.? Someone mentioned a compromise, should I read into that that two groups have come to an agreement or is this just a proposal of one side with what this one side views as a compromise? Either way, I see where the land owners are giving up access around natural objects..., but what is the "other group" giving up? I don't see the term where a true compromise has been reached...maybe I missed that part some where??


Farm Bureau wants wet boot or a complete reversal of Conatser or they will not support Rep. Fowlke, they said so in our last sub committee meeting and sent Rep. Fowlke an official letter to that point. That will not happen, a 5-0 Utah Supreme Court decision tells us so. There was definitely more than just two groups over the summer/fall that had input regarding this bill. The compromise is protecting landowners interests from liability to trespass while allowing the public it's rights that have always existed by the interpretation of Utah law.

I offer you the same as Troll, pm or email me and we can discuss further if you are interested.


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## fishsnoop (Apr 3, 2009)

Troll said:


> My side was not present and I did not have a voice.
> But I will have mine now.


So what/who is your side then? Give me everything, is that your side? Help me understand because you are making little sense to this point.


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## Troll (Oct 21, 2008)

fishsnoop said:


> Troll said:
> 
> 
> > My side was not present and I did not have a voice.
> ...


You do not represent me, in this or any other matter. Thanks for what you did, but I disagree with the bill as written and plan to make myself heard about it.
Make sense now?


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## Catherder (Aug 2, 2008)

A few random comments FWIW.

1.


fishsnoop said:


> lines 91-93
> 
> is only explaining that if you can not identify the OHWM then you must be in the water, a great compromise to be able to allow law enforcement to have a definition to enforce. Examples of this would be something like Otter Creek in the "grass valley" from Koosharem Res. to Otter Creek Res.


Thanks for that explanation. That makes good sense now.

2.


Huge29 said:


> Again, regardless of my personal opinion, where is this with the Farm Bureau group, etc.? Someone mentioned a compromise, should I read into that that two groups have come to an agreement or is this just a proposal of one side with what this one side views as a compromise?


Fishsnoop can get into this in more detail than I but the committee Rep. Fowlke put together included recreational users, the Farm Bureau, landowning interests, the DWR,and legislators across the spectrum. The Farm Bureau is against OHWM and demands "wet Boot" but has been part of the rest of the discussion in crafting this. As Troll's comments have demonstrated, there are several areas where the bill hasn't given certain anglers all that they would want in our "perfect" scenario, but the several parties have tried to craft a bill that is fair to all sides. And very importantly, anglers and water users were at the table in crafting it.

3. Troll, I will grant you that walking portage around natural obstruction could be something that could be asked for, but I stand by my assertion that Conatser currently does NOT allow you to portage around a natural obstruction by going onto posted private land at this time and the proposed bill will result in no loss of rights. I also agree with Fishsnoop that I can think of no example of a private bed with such an obstruction as you describe that would fit your criteria of a problem. It may exist, but if so, it is rare.

I am quite certain that the "other" side is not going to provide you with a more favorable bill for the ideas you have presented. If you think that you can successfully agitate out a bill that is stronger for users and runs roughshod over landowner and law enforcement concerns in the current political climate, well, I wish you well in your quest.

Having reread this, it seems to me that it gives us users ALL we need, is fair to landowners, and is enforcable for law enforcement (which both sides want). I feel it deserves the anglers support.


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## Huge29 (Sep 17, 2007)

*yo*

Catherder,
Thanks for the clarification! I don't get why you would ask me to PM you Fishsnoop?? Is there some secret pinochle card that you can't divulge publicly? Seriously, ???
Without me saying anything about my position or my opinion or my biases...in this bill the landowners are to give up access around obstacles--this is clearly NOT part of the court's decision--so, what is it that those who want this additional privilege are giving up for that? Honestly, a sincere question, what is being given up by those who want more rights than what the decision (I have not read through the bill), access fee, clean up hours...??? If nothing, I don't think that this could be called a compromise at all, but rather a one way street is my impression.
Secondly, from reading this thread, maybe Troll is blowing it out of proportion, but this does seem awfully complex, which would make it very difficult for law enforcement to enforce. I would not think that that would be a good solution for anyone involved as all parties may interpret it the way it would be most convenient for that person whether it be the landowner or the "other guy."


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## 280Remington (Jun 2, 2008)

Troll, what is your side? Do you realize at this point you are an army of one? I hate to tell you but legislators aren't going to listen to one person. Legislators care about one thing and that is to get re-elected. To get re-elected they usually listen to what their constituents have to say. If there are 100 guys corresponding with their representatives via e-mails, letters, phone calls, personal visits, etc. and all are in favor of HB 80 as it is presently written, and you come along and start ranting to them about how you are against the bill, well I hate to say it but you are wasting your time. So again, tell us "your" side. What do you want the proposed legislation to say?


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## Troll (Oct 21, 2008)

Read the posts above.

You are mistaken about who is listened to. They listen to who donates to their campaign. Sorry to burst your bubble on that, but that is just the way it is in politics. Like you said, they care about geting re-elected and that takes money. Sadly sports people are but a small part of the over all voter equation.


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## 280Remington (Jun 2, 2008)

Troll, I will ask again. What do you want the proposed legislation to say? While you are at it show us in the Utah Constitution or in Conatser what it is you are asking for? Is what you want a right granted to you in the Utah Constitution or spelled out in Conatser? Or is it a new law you have come up with yourself?


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## toasty (May 15, 2008)

For all those that may not know where to find the email address of their rep:

http://www.le.state.ut.us/house/Distric ... /State.htm

Click on your location and it will take you to their page.

I support this bill, it is waaaaay better than HB 187. In talking with a couple of reps last year, a couple of them said they think they have to get something through the house now. They feel that they can no longer allow everyone to interpret Conaster decision as they see fit. This is about as good as it can get for fisherman in the state and it protects the private ponds and canals for the farmers and landowners. The only ones that are going to be really upset by this is the guys that are hoarding sections of free flowing rivers for their personal fisheries and/or profit.


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## Huge29 (Sep 17, 2007)

Well, I now read it:
-Line 120 would make it appear that this does not apply to any reservoir, correct? So, at Scofield, of which the great majority of shore line is privately owned....never mind, but why would that be excluded?
-I can certainly see the good intentions of the sponsor, but I feel very strongly about personal/real property rights!! There is no incentive for the landowners to allow the portage around natural obstacles. If I understand the Conatser decision correctly, incidental contact with the wet river bed is the only access allowed. This bill is to expand the access to the high water mark. Therefore, this bill is nearly as bad as HB187 and I will do my best to see that it does not pass. This bill further encroaches on property rights with the only incentive to landowners that no ridiculous lawsuits are filed against them, which is not even really required, is it? 
Feel free to let me know the err of my ways, maybe I misread it all.


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## Catherder (Aug 2, 2008)

Can't sleep after that Jazz game, (wow) so I'll address your questions.



Huge29 said:


> There is no incentive for the landowners to allow the portage around natural obstacles.


No, there is not. And the proposed legislation does not allow it, except in floating watercraft.



Huge29 said:


> If I understand the Conatser decision correctly, incidental contact with the wet river bed is the only access allowed. This bill is to expand the access to the high water mark.


Conatser allows contact with the river bed pursuant to recreational activities. However the scope of the easement was NOT defined in the decision. It did not specifically say wet boot and it did not say OHWM. It just says bed. And law enforcement is having trouble determining some trespassing violations. Most states with "Conatser" type laws have adopted OHWM as their standard and it has worked very well, both for law enforcement and in preserving the resource. Since the scope of the easement was not defined by Conatser, whatever decision is decided on , either wet boot or OHWM, does not represent a "gain" or "loss" for landowners and water users from the original decision IMO.



Huge29 said:


> This bill is to expand the access to the high water mark.


Again, it doesn't expand anything. It provides the ORIGINAL definition of what "water bed" or "private bed" means.

I won't delude myself that I can change your mind on this, but I am more convinced than ever that this bill as presently constituted, provides a fair shake to landowners, is enforcible for police and the DWR, and allows water users to enjoy their pursuits as determined by Conatser. Unless it is altered for the worse, I'll do my best to see it through.

If you have a more fundamental belief that Conatser itself was "wrong", then we will just have to agree to disagree.


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## Huge29 (Sep 17, 2007)

I just barely saw your reply and from your response, I can see that I made an assumption that was not correct in the definition of water bed is. In all fairness, I don't own any land and nor does any family that would be affected by this issue either way, so my opinion is simply based on personal/real property rights. Let the debate begin or continue I guess.


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## F/V Gulf Ventur (Oct 8, 2007)

Good article by Brett Prettyman--> http://www.sltrib.com/outdoors/ci_14270800

Radio interview with Chris Barkey--> http://networkedblogs.com/p26193179


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## Lonnie (Feb 2, 2010)

toasty said:


> The only ones that are going to be really upset by this is the guys that are hoarding sections of free flowing rivers for their personal fisheries and/or profit.


Amen, and quoted for truth!


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