# Solution for Stream Law?



## copper (Sep 11, 2008)

I personally think this is probably the way it should be done:

http://lonsberry.com/writings.cfm?story=2574&go=4



> A proposal before the Utah legislature that would define some Utah waterways as public places even though they pass through private property. The legislation stems from a recent court case that said anything that looks like a stream - even if it dries up in the summer - is public and people have a right to be there.
> 
> Back East, they have a lot more streams. That has to do with the fact it rains and snows there. Back East, they have a lot more experience. That has to do with the fact the East was settled a couple hundred years before the West.
> 
> ...


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## rstrouts (Jan 29, 2009)

Federal and state laws trump "traditions of the West". The USCt's unanimous ruling found several times that the stream bed owner's rights weren't injured (taking), the ruling has zero, nada, nothing to do with access to/from waters held in the Public Trust, and the list can go on and on and on and on and on as to why Lonsberry's take on things is so utterly wrong, nonsensical and useless in the discussion about how a bill can clarify the Supreme's ruling which is about *recreational use of* rather than *access to/from "all state's waters"*.

Ferry's bill is ambiguous, unconstitutional in many instances, and unenforceable.

Read the bill, read the ruling to understand, not some wholly innocuous, mistaken and illogical rantings made only from a position of ignorance.

My view on HB 187 is to:

*Kill it, 
Chill it * and 
*New bill it!*


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## proutdoors (Sep 24, 2007)

copper said:


> I personally think this is probably the way it should be done:
> 
> http://lonsberry.com/writings.cfm?story=2574&go=4
> 
> ...


Too simple and too reasonable to ever work. Look at the post from rstrouts, having a responsible ruling that benefits ALL not just one side appears pert near impossible. :?


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## Troll (Oct 21, 2008)

I suggested some solutions a while back, some Diamond Member chose to beat me up for it. 
So, I'll keep pushing my solutions on the hill, alone, and only saying what I want to have happen.
When this bill or a bill simular to it passes, I'll post my property along *MY* stream and have anyone who comes on it arrested.


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## copper (Sep 11, 2008)

Since I believe in the concept of not speaking out of ignorance (which I probably have done), I went ahead and read the ruling and the full text of HB187. I personally, after reading it agree with it on some points. Maybe it is not the Bill I would propose, but with a little modification (namely allowing recreation on all public waters and not just a few specific waters) it is a Bill I could support.

With the condition of allowing recreational use on _all _public waters, the bill would allow you to engage in lawful activities within 5 feet of the water on land that is private as long as their is not a single family dwelling within 150 feet. That would allow recreation on all public waters as long as someone is not living next to that water and has posted a sign which restricts your access. If the homeowner has not placed a sign, then you can still engage in lawfully activities by their home.

I think that is entirely fair. It gives the person the privacy they as a home owner deserve. It also allows for the public to engage in lawful activities which utilize the public water as outlined in the Supreme Court case.

This bill is only unconstitutional because of the restriction of access to outlined waters and not them as a whole. It maintains the line held in Conatser v. Johnson, but gives a definition for the water bed whereas the Supreme Court ruling never did and was far too broad.

This is a good bill and should be supported by nearly all anglers, recreational users and property owners alike, if we can get them to remove the clauses which only allow certain waters.


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## copper (Sep 11, 2008)

Troll said:


> I'll post my property along *MY* stream and have anyone who comes on it arrested.


See, good bill, it protects property owners like yourself who live within viewing distance of streams and such, but allows for recreational users to do many things within 5 feet of the water.

I honestly don't understand what all the uproar is about if we can get them to remove the specified waters clause.

This bill would have protected the Plantiffs if it were law at the time of Conatser v. Johnson.

I think I am going to call my representative or write him to see if we can get the defined waters clause removed and tell him if so, I would like him to support the bill.


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## Troll (Oct 21, 2008)

I live about 45 miles from my property with a stream on it. There is a cabin there, within 150' of the river, so, even though I'm not there to have my privacy intruded upon, I can restrict others from their water, 24/7.

It's not "viewing distance" it's "within view or 150', which ever is closest" So, if your house is more than 150' from the river, even though you can see someone, tough luck, they can recreate.
If your house is within 150' even if you can't see them, they can't recreate.


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## Dead Drifter (Nov 22, 2008)

I like this statement by someone:

"If this bill passes you will have to take a map and compass, a GPS, a historian, an archeologist, and a professional land surveyor with you just to make sure you can fish where you are fishing.

The bill is a joke. It is way over-the-top and makes fishing in Utah way to complicated. What we need is something more understandable for Utah residence as well as tourists, that will make them feel like they are welcome inot this great recreational state when they come for a visit. I'm surprised they didn't write something about not taking a beer with you. Heaven knows where alll those empty bottles and cans go.


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## HunterGeek (Sep 13, 2007)

Dead Drifter said:


> It is way over-the-top and makes fishing in Utah way to complicated.


Agreed. It's too complicated. For example, can someone decipher the following for me:

_(5) (a) A person may not fish:
(a) in a public water:
(i) listed in Section 73-6a-202 ; and
(ii) located on or adjacent to property to which access is restricted; and
(b) within 500 feet of a single family dwelling that is built before May 12, 2009, and qualifies for the residential exemption under Section 59-2-103 if the owner of the single family dwelling posts a notice visible from the bed indicating the segment of public water in which fishing is prohibited by this section._

What? :?:

Does this mean that homeowners can put up a sign preventing people from fishing on their neighbor's property if it's within the specified distance to their house? Or does it mean that the neighbor's property has to first have "restricted access (whatever that means)" before the neighbor can put up the sign?

Also, it only mentions fishing as being prohibited within this posted distance. Does this mean that waders can still walk through the stream to get past it? Why only prohibit fishing within this distance? It seems as though I could conceivably fish right up to that exclusion zone, stop fishing, wade into the restricted area, stand there drinking a beer while I stared at the house with binoculars while claiming that I was birdwatching.

As I've stated in other posts, I support the whole concept of private property rights and think anglers need to reach a good compromise that acknowledges and respects their concerns. Still, this bill is a larded-up and confusing mess.


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## copper (Sep 11, 2008)

HunterGeek said:


> Dead Drifter said:
> 
> 
> > It is way over-the-top and makes fishing in Utah way to complicated.
> ...


That is the outdated bill. It has been amended. The clause has changed to "engage in a recreational activity".

I think a lot of misinformation is being spread by upset anglers, if they read the bill themselves and understood it(especially with the amendments), they would find, it provides a balance of protection for anglers and property owners.

The only problem I have with the bill is the specified waters clause. Anglers should have went to battle getting the bill amended to eliminate line 216 and down. Not fight it in it's entirety. A modified bill would open up much more water than it would take away.

If HB187 isn't passed this year, as a fisherman, I would very much like to see a modified bill pass next year. Again, because it would offer a lot of peace of mind to anglers.

As said in my previous post, this bill would have nullified the trespassing citation of the Conatser's, which is the reason we are even discussing this. A Supreme Court ruling is nice, but it is not the law. This would be the law, and would assure you don't have to fight any legal battles.


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## rstrouts (Jan 29, 2009)

The purpose of HB 187 is to clarify some of the vague terms in the Conatser ruling. That's it. Ferry has turned the bill into an access issue which has nothing to do with the ruling.

Yes, of course, a land owner has rights to privacy of that land. Yes, of course, a water owner has rights to use the water for commerce, agriculture, and, yes, for recreational uses. However, those rights coexist with the other and the water owner's rights to use the water for recreational purposes, as spelled out in the Conatser ruling, is dominant to the landowners' rights to privacy and ownership of the bed.

If the issue in the Conatser case had to do with recreational use on the riparian land or cultivated land outside of the streambed, which would then be an access to/from situation, then the coexisting rights would favor the landowner's dominant rights to the servient water owner's rights.

That's the simple answer to the misunderstanding that HB 187 has created in such a confusing manner to boot. Not only does 187 propose a law that doesn't answer the need to qualify the ruling but it also proposes solutions that are vague, ambiguous and illegal to Federal, long standing and settled law.

Simply put, Ferry's bill, and Ferry himself, doesn't know what it(he)'s talking about. Not even close. I can easily go through the bill line by line, subject by subject, and present a multitude of legal questions that would have several courts tied up in litigation for a very long time.

The simple answer is to kill the present bill, chill (bury) it, and write a brand new bill between now and next session that will bring a clarification to the ruling to the benefit of all coexisting rights' owners. As I've stated before...

*Kill it, Chill it* and *New bill it!*


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## copper (Sep 11, 2008)

rstrouts said:


> The purpose of HB 187 is to clarify some of the vague terms in the Conatser ruling. That's it. Ferry has turned the bill into an access issue which has nothing to do with the ruling.
> 
> Yes, of course, a land owner has rights to privacy of that land. Yes, of course, a water owner has rights to use the water for commerce, agriculture, and, yes, for recreational uses. However, those rights coexist with the other and the water owner's rights to use the water for recreational purposes, as spelled out in the Conatser ruling, is dominant to the landowners' rights to privacy and ownership of the bed.
> 
> ...


I tend to agree with you.


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## flyguy7 (Sep 16, 2007)

The biggest problem with this bill with most anglers is lines 192-199. It is not a compromise and a fair bill if it is able to limit use of public water that is located within 150 of a house. This is severely restricting access that was considered private even before Conatser-Johnson.


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## Dead Drifter (Nov 22, 2008)

Supreme Court is to Interprete the law. That's what they did in Conatser versus Johnson. They did their job and a 5-0 decision shows that the interpretation of the law was not all that complicated.

HB187 is complicated. The law of the land should be easy for all to understand and thus allow for the common people to know when they are within their right or know when they are breaking the law. This bill doesn't allow for the common public to know when and where they are breaking a law, which makes it a poor piece of legislation.

I know law makers are like most of us. It's hard to admit that you have drawn up something that isn't good. It's hard to humble oneself and say, "Hey, This was done in haste, it was done without public input, it was done to protect a certain group within the community as a whole and I'm man enough to say, let's kill it and start over."

Imagine a good legislature doing that!

As a side note: I heard that Conatser called Johnson after the SC ruling and rubbed it in his face. I'm opposed to that kind of behavior too. (I heard this through a bitter Weber River landowner so I don't know if it's a rumor or not.) We need to be careful with our demeanor!!!


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## Guns and Flies (Nov 7, 2007)

Good points made by all; the biggest problem I have with the bill is limiting waters as Copper has mentioned. Why limit some and not others? I don't like this bill or how it was developed, shady shady shady; thanks reps for developing our distrust in you


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## Dead Drifter (Nov 22, 2008)

And now I hear that Ferry or one of his cronies is telling the representatives that the anglers and sportsmen are now on board with the bill. Decieptful devils. Will they stop at nothing to fill their pockets, push private interest above the publics interest?

I guess all is well on Sundays when they sit in the stands of their churches!


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## Guns and Flies (Nov 7, 2007)

Surely these disturbing creatures of evil do not go to church :shock:


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## rukus (Apr 11, 2008)

rstrouts said:


> ......That's the simple answer to the misunderstanding that HB 187 has created in such a confusing manner to boot. Not only does 187 propose a law that doesn't answer the need to qualify the ruling but it also proposes solutions that are vague, ambiguous and illegal to Federal, long standing and settled law.
> *Kill it, Chill it* and *New bill it!*


This is exactly why I am against this bill. I am very much in favor of property owners maintaining their rights as property owners, but also I am very in favor of improving the fishing opportunities for all of us. I just have a really hard time supporting a bill that is so poorly written and vague. I think the clause about being within 150 feet of a residence is a load of crap. The house could be a mile away from the stream, the point is it is "privately owned land" and it should be treated as such. To me, putting in a distance restriction in the bill is only saying...."This is your private property to use as you wish, UNLESS......(insert whatever stupid rule you want), then it is the publics to use.


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## flyguy7 (Sep 16, 2007)

rukus said:


> rstrouts said:
> 
> 
> > ......That's the simple answer to the misunderstanding that HB 187 has created in such a confusing manner to boot. Not only does 187 propose a law that doesn't answer the need to qualify the ruling but it also proposes solutions that are vague, ambiguous and illegal to Federal, long standing and settled law.
> ...


I think you have missed the point of this entire thing, Rukus. sections 192-199 closed access on rivers through *public* water, not private, if there was a house withing 150 feet on the river. Even if it was public property, any landowner living withing 150 feet of the river could legally post it and close access off to the *public* water, not private land, because the public water was within 150 feet of the house.

For those of you that have not read the new amended bill, the 150 feet is now not a factor. The bill has been drastically changed and honestly we are getting much closer to a compromise with it. http://le.utah.gov/~2009/bills/hbillint/hb0187s02.pdf


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## Riverrat77 (Sep 7, 2007)

copper said:


> Since I believe in the concept of not speaking out of ignorance (which I probably have done), I went ahead and read the ruling and the full text of HB187. I personally, after reading it agree with it on some points. Maybe it is not the Bill I would propose, but with a little modification (namely allowing recreation on all public waters and not just a few specific waters) it is a Bill I could support.
> 
> With the condition of allowing recreational use on _all _public waters, the bill would allow you to engage in lawful activities within 5 feet of the water on land that is private as long as their is not a single family dwelling within 150 feet. That would allow recreation on all public waters as long as someone is not living next to that water and has posted a sign which restricts your access. If the homeowner has not placed a sign, then you can still engage in lawfully activities by their home.
> 
> ...


I agree.


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

copper said:


> Troll said:
> 
> 
> > I'll post my property along *MY* stream and have anyone who comes on it arrested.
> ...


PLEASE READ IT AGAIN, and AGAIN, and AGAIN!!!!!!... this is a farce, a rip off, a lie, and taking from PRIVATE LAND OWNERS! This is not a good deal for ANYONE!

Please get informed you guys, its downright disturbing that the wool has been pulled over your eyes.

IDAHO LAW - 3 paragraphs

UTAH LAW - 14 pages!!!!


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## Riverrat77 (Sep 7, 2007)

F/V Gulf Ventur said:


> PLEASE READ IT AGAIN, and AGAIN, and AGAIN!!!!!!... this is a farce, a rip off, a lie, *and taking from PRIVATE LAND OWNERS*! This is not a good deal for ANYONE!


How so? I've read the bill (although apparently there have been amendments since I read it)... and the Supreme Court decision but if they amend the list of waters, how does that create a worse bill?


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## Guns and Flies (Nov 7, 2007)

F/V, I see that they have added more water and now are making it to require there be 4 houses within 150 feet to the water???


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## flyguy7 (Sep 16, 2007)

I don't see that happening, F/V. Since HB 187 has been introduced, the list has only gotten larger; from 14 to 17 to 19 to 22 to now around 30. I think it is unlikely that they will revert all the way back and get rid of the list entirely. On the plus side we have had some good additions recently such as ECC, Lost Creek, Diamond Fork, Currant, and the Fremont.


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## Guns and Flies (Nov 7, 2007)

It this just so the "committee" can shut them all down later?


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## nightfish (Apr 29, 2008)

You've read the bill and it makes sense to you? I've spoken to lawyers and lawmakers who find the language extremely confusing.

Reading the substitute bill last night, I found at least a dozen conflictions in its own language.

If you are really concerned about the rights of private property holders, you should be very concerned about this bill. The lawsuits that could erupt from this language include the possibility that a landowner would have to compensate the public for a taking, could lead to a landowner locking themself out of access to their own property for recreational purposes, and could allow a neighbor to lock out a landowner from his own access for recreational purposes.

The bill as written would protect the rights of some landowners, while taking rights from other landowners. It would also prohibit some landowners who wanted to submit their stretch of water for closure to the committee by creating a financial burden (needing to hire a lawyer, survey crew etc, in order to follow the complicated rules of submission.

And again, the public is the biggest loser, as this bill seeks to serve the interests of a few over the many.


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

Putting lipstick on a pig doesn't change the fact its still a pig.


The Conatser decision did not take LAND away.... HB 187 is taking 5 FEET of land on either side of the river,that's just the start to a disaster of a Bill.


The issue is and always has been the EASEMENT, not ACCESS, not NAVIGABLE. HB187 is a rouge Bill, a sham, an irresponsible act. 

Believe me, for fishermen that's great and all but its not right period! No one has the right to take away land from anyone. Nobody has the right to take away water from anyone. 

RR - you know the digits.


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

flyguy7 said:


> I don't see that happening, F/V. Since HB 187 has been introduced, the list has only gotten larger; from 14 to 17 to 19 to 22 to now around 30. I think it is unlikely that they will revert all the way back and get rid of the list entirely. On the plus side we have had some good additions recently such as ECC, Lost Creek, Diamond Fork, Currant, and the Fremont.


There are over 450 HUC #10. We are getting all HUC #8 and Utah goes down to HUC #14 (trickle)..... who's getting the good deal? Not the PUBLIC! : )


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## HighNDry (Dec 26, 2007)

This bill will set the standard for their ability to lock-up other places. Once a law like this passes, lawyers can use it for litegation against us in future plots to take away our right for recreation. This is a complicated piece of crap! It is poorly written.

They are getting YOU to buy into the very tricky thing I suggested they would do from the start. They place a very restrictive, hard to understand bill out there and now they are making YOU think they are being nice by giving a little here and there to you. DON'T buy into this carp. It's a bad bill. It needs to be killed and a bill with wording the common person can understand needs to be written.

We should not have to carry a 14 page manifesto into the stream with us just to verify we can fish where we are fishing. That is BS.

I can't believe YOU guys are buying into this PLOY.

These are slick, deceiptful, politicians. Wolves in sheep's clothing, trying to take away the right the Supreme Court confirmed you have in July.


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## Riverrat77 (Sep 7, 2007)

flyguy7 said:


> I don't see that happening, F/V. Since HB 187 has been introduced, the list has only gotten larger; from 14 to 17 to 19 to 22 to now around 30. I think it is unlikely that they will revert all the way back and get rid of the list entirely. On the plus side we have had some good additions recently such as ECC, Lost Creek, Diamond Fork, Currant, and the Fremont.


Funny that they added Diamond Fork.... I was under the impression that Diamond Fork runs across government agency land... and therefor was not subject to the bills restrictions... not to mention there aren't any houses on Diamond Fork that would call for such restrictions even if it was private, unless they're talking about sections below the meeting with Thistle Creek to create the Spanish Fork River..... :?


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## HighNDry (Dec 26, 2007)

You're right. It's just another way for them to make it look like they are giving something to us. It's deception at its finest.


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## Riverrat77 (Sep 7, 2007)

HighNDry said:


> You're right. *It's just another way for them to make it look like they are giving something to us.* It's deception at its finest.


Ok, that we can agree on.... if a water is on public land, it has NO business being in this bill... so whats the deal there? I smell a skunk.... list waters running through private land, fine, great, terrific, but don't pee in my ear and tell me its raining. :?


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