UT Supreme Court: Stream Access

In Texas the riverbed is public property in navigable waters. I guess the same applies in Utah? Not so in Colorado. Private property owners own the bottom. So you can "float" through it, but can't touch the bottom or you are trespassing.

txhunter58

venor, ergo sum (I hunt, therefore I am)
 
Utah is like Colorado. That is what we are fighting against (access prohibitions to the general public).
 
A similar but broader case regarding the Provo River is also pending before the Utah Supreme Court. We should see a ruling in the next few months. Keep your fingers crossed for more good news!

-Hawkeye-
 
This is in fact is BAD news for all those who think they are going to get the right to trespass every dribble of water in Utah.

The whole argument is based on navigability,,, as it should be. There are so many in this "Right To Trespass" moment that just plain ignore that fact.

Those behind the moment are in fact having a very hard time showing many consequential waters in Utah that have historical navigability.

They would have better luck if they called themselves River Access, not Stream Access.
 
This case was only about navigability of a small section of the Weber River. So you are partially correct in the overall wrongs that "those behind the moment" are working to correct. The Provo River case is about "all waters of the state," however. So in due time we will have that answer as well. It can't be long. I personally expect it before the end of the year. And "those behind the moment" have not challenged any other waters for navigability purposes at this point, so I'm not exactly sure how true it is that they are having a hard time showing anything.

It's funny, I sat at the Capitol and in countless meetings back in 2009-2011 with owners along the Weber River, some of which were in this specific area in question. I tried to tell them that out of every landowner fighting against us, they had the most incentive to compromise with us as they had the most to lose. I told them to their faces 7+ years ago that the Weber was a navigable river and they'd lose. They didn't want to listen. They were sold fool's gold by the Farm Bureau and Representative Kay McIff. It's really too bad that we didn't just go along with the compromise bill HB 80 in 2010 and be done with this issue. USAC is going to win on all counts and get more than HB 80 would have given the public, but was willing to give up some rights in a compromise. The landowner constituency was willing to give up nothing, and now, will lose the fight entirely. There is a life lesson in that somewhere, I'm sure.
 
>Dammit!! Now every time I turn
>on my sprinklers some damn
>fly fishermen is going to
>go trespassing through my yard.

^^^LOL! I actually personally watched Don Peay make this exact argument to a legislator. She didn't buy it, and he looked silly.
 
Unfortunately, enough legislators believed that argument and similar arguments to pass H.B. 141 in the first place. Seven years later we are crossing our fingers and hoping the Utah Supreme Court will restore our rights to access public waters.

-Hawkeye-
 
That's great I remember fishing this stream when I was young. Caught a lot of big browns right next to the Spring Chicken Inn.
I'll take my kids up there the next summer
 
>Dammit!! Now every time I turn
>on my sprinklers some damn
>fly fishermen is going to
>go trespassing through my yard.
>


It's funny but sad how this same type of argument is exactly what derailed the clean water act which was actually very beneficial to sportsmen and wildlife.
 
I got a ticket flyfishing there on the Weber. Water is public and the public have every right to access that water.
 
Only one mile was opened up. You can not trespass to get to the water. State legislators still need to set some legislation or rules
 
The second case pending before the Utah Supreme Court could provide a much broader ruling that would open many waters throughout the state. The legislature created this problem with H.B. 141. I have little confidence that they will now help solve the problem.

-Hawkeye-
 
Lest we forget, the can of worms was also manufactured with a helping hand from the same wing nuts who think they can corner hop their way to Mecca. There have always been plenty of idiots on both sides of the equation. Public access loses its glamour proportionate to the square of your ownership.
4abc76ff29b26fc1.jpg
 
LAST EDITED ON Dec-02-17 AT 11:40AM (MST)[p]Hey 1911, can you find a single example of somebody being successfully prosecuted for corner-hopping? Because there definitely are examples of charges being dropped once somebody fought a corner-hopping ticket.

Prosecutors know dang well that corner-hopping is likely legal and they surely don't want that precedent on the record, so even though a sheriff may write a ticket at the request of a landowner, I don't know of a single time it was adjudicated and withstood legal scrutiny.

One person screams "private property" while the other screams "public property" but in this case there is no actual harm to the landowner, but the public would lose access to their rightful lands without corner-hopping. Hence the reason the supposed-illegality of corner-hopping hasn't withstood legal scrutiny.

We already know of people renting helicopters to access landlocked public land, which means this really is a matter of relativity. Isn't a helicopter just another type of corner-crossing?

PS. On a different, but related, note... I'd like to see a landowner prove his damages from somebody hunting adjacent public land without ever literally touching private property. That's where courts consider "reasonableness" which is a tough putt to make when there is no actual harm to the landowner but the converse would prohibit public access to public lands.

For example, if I stood on the sidewalk in front of your house and extended my arm above your lawn, I'd technically be violating the airspace above your property. But what are your damages? Then throw in the "reasonableness" of the fact that in a corner-crossing situation, the damage to me by protecting your airspace is the loss of lands that I have a right to access, and you'll lose that argument every time. Hence, the fact that nobody has been successfully prosecuted for corner-crossing (at least according to what I've been able to find).

Grizzly
 
LAST EDITED ON Dec-03-17 AT 12:23PM (MST)[p]It is funny. The title of the following article seems to say the issue is black and white. However, the article shows that is a lot yet to be decided:

http://billingsgazette.com/news/sta...cle_0848ffe6-200c-11e1-8b59-001871e3ce6c.html

On the one hand I am very much on the side of public access to landlocked land and corner hoping. That said, you don't have to right to send up a drone to hover over your neighbors property and take pictures. Cause if you do that on my property, I will shoot the drone out of the sky. And at least in my part of the country, there is not a jury who would side with the drone owner.

The only real answer to the corner issue is for the government use emminient domain to take a small portion of the private owners land at the corner and install a gate that you and possibly a horse could get through. So lets say a 48" gate on a corner would end up taking about 0.0003 acres. Govt would have to pay a "fair price" for that land, so even assuming the land is worth $10,000/acre that would cost us $3. Will never happen, but should because those landowners are stealing our right to use public lands

txhunter58

venor, ergo sum (I hunt, therefore I am)
 
LAST EDITED ON Dec-03-17 AT 04:06PM (MST)[p]I think we can all agree the law is extremely unclear, many states assume it is illegal but I still don't know of a single person successfully prosecuted for corner crossing.

Here's a picture of an attempt to lock up public land in Wyoming. Even with these signs, Albany County Sheriff would not write tickets.

355492024621813747408325951385420132719698434457n.jpg


-------------------

--House Bill 171, introduced to the Wyoming Legislature in 2011, was an attempt to do just that (specifically legalize corner crossing). It would have decriminalized corner crossing, had it not been roped and euthanized in the House Agriculture Committee.

--In 2013 hunters, anglers, and other outdoor enthusiasts rallied behind a similar attempt in Montana. H.B. 235 enjoyed vocal popular support, but it too died an ignominious death.

--According to Washington Department of Fish and Wildlife Region 1 Enforcement Coordinator Capt. Dan Rahn, ?If someone knows where they're at, and they're correct, and they step from public to public without setting foot on private land, they're not trespassing. No Washington officer that I know would cite someone for that.?

--Large landowners, it turns out, still hold immense political sway in the Rocky Mountain states.

--That may explain why hunters in Utah, Idaho, New Mexico, and Colorado have more or less resigned themselves to the status quo. Corner crossing in these states remains a prosecutable offense, but with far fewer affected acres than Wyoming and Montana, the issue is less pressing. (above paragraphs taken from Outdoor Life article on the subject)

There was also House Bill 386 in Nevada that would have specifically legalized corner crossing though it died in committee.

------------------

Just like the Stream Access fight... this is a battle that landowners are likely to lose and therefore they talk a big talk, but the charges have so far always been dropped once an educated hunter challenges the illegality of corner crossing.

PS. The drone argument isn't totally on point because you have the presumption of privacy in your own yard... see again that people have successfully used helicopters to access landlocked public land. Also, a fence bordering BLM land (which is mandated to be between 42"-48" tall) would never give the landowner the expectation of privacy. As I mentioned earlier... what exactly are the damages a landowner could prove in court anyway?

At a minimum, if no access is granted by adjacent landowners I would just as soon have the public land closed as well. Right now, a few people are buying border properties and then attempting to use public land as their own private hunting preserve. If the public isn't allowed access, then close the whole thing off.

Grizzly
 
FYI-- I agree with your sentiment on shooting down a drone, but it isn't only a local gun charge, wanton endangerment, or criminal mischief... which I agree would result in acquittal in most western states. Shooting down a drone is a Federal offense punishable by 20 years in prison if the Feds choose to prosecute for it. https://finance.yahoo.com/news/shooting-drone-will-get-you-20-years-in-prison-211541710.html

I think I'd try and get the drone with a paintball gun first... maybe you'd get yourself some leniency ;-).

Have a great rest of your day.
 
Good and Bad News

On the one hand as a Sportsman and a Fisherman I think yes it should be allowed. You should be able to fish the river provided you stay in the river, and do not trespass. 15 or so years ago I was over in Tabiona and at the little Bar/Inn/Restaurant was asking some of the locals where to fish the Duschene. One guy who owned a farm on the river said that as long as you stayed in the river. Nobody cared. Just don't go out on their land and don't leave gates open.

The problem is there are those that think the rules don't apply. That they can bend the rules any way they want. Case in point a couple of years ago On a Duck Club that I belong to we busted guys floating the river that were not members of the club. They said because they were in the river that they weren't trespassing. While that is correct we watched them more then once stop get out of the raft. Walk up on to the shore and gather birds. We had photo evidence etc... This happened multiple times with these guys. We called the sheriff. They were cited and then County Attorny droped the charges because they said they were floating the river only even with the photo evidence of them out of the raft on land. Come to find out later the attorny was a cousin to them.
 
RE: Good and Bad News

In Utah they amended to law in 2017 to include drones.

As far as corner crossing, Based on how the Utah law reads it seems legal to me. To trespass you have to "enter" the property and "enter" means "intrusion of the entire body". So I take it that not only can you cross corners, you can also put a foot down on the private property to help you get over the corner marker, so long as the "entire body" does not enter the private property.



Effective 5/9/2017
76-6-206. Criminal trespass.

(1) As used in this section:
(a) "Enter" means intrusion of the entire body or the entire unmanned aircraft.

(b) "Remain unlawfully," as that term relates to an unmanned aircraft, means remaining on or over private property when:
(i) the private property or any portion of the private property is not open to the public; and

(ii) the person operating the unmanned aircraft is not otherwise authorized to fly the unmanned aircraft over the private property or any portion of the private property.


(2) A person is guilty of criminal trespass if, under circumstances not amounting to burglary as defined in Section 76-6-202, 76-6-203, or 76-6-204 or a violation of Section 76-10-2402 regarding commercial obstruction:
(a) the person enters or remains unlawfully on or causes an unmanned aircraft to enter and remain unlawfully over property and:
(i) intends to cause annoyance or injury to any person or damage to any property, including the use of graffiti as defined in Section 76-6-107;

(ii) intends to commit any crime, other than theft or a felony; or

(iii) is reckless as to whether the person's or unmanned aircraft's presence will cause fear for the safety of another;


(b) knowing the person's or unmanned aircraft's entry or presence is unlawful, the person enters or remains on or causes an unmanned aircraft to enter or remain unlawfully over property to which notice against entering is given by:
(i) personal communication to the person by the owner or someone with apparent authority to act for the owner;

(ii) fencing or other enclosure obviously designed to exclude intruders; or

(iii) posting of signs reasonably likely to come to the attention of intruders; or


(c) the person enters a condominium unit in violation of Subsection 57-8-7(8).


(3)
(a) A violation of Subsection (2)(a) or (b) is a class B misdemeanor unless the violation is committed in a dwelling, in which event the violation is a class A misdemeanor.

(b) A violation of Subsection (2)(c) is an infraction.


(4) It is a defense to prosecution under this section that:
(a) the property was at the time open to the public; and

(b) the actor complied with all lawful conditions imposed on access to or remaining on the property.



Amended by Chapter 364, 2017 General Session

https://le.utah.gov/xcode/Title76/Chapter6/76-6-S206.html
 
RE: Good and Bad News

Prosecute those who break the law via the laws already on the books (trespassing, littering, etc.). Don't punish law-biding sportsmen and citizens for the acts of a knuckleheads, especially when there are already laws in place prohibiting those actions. In other words, enforce laws already on the books!

We face the same problem with gun control advocates.

-Hawkeye-
 
RE: Good and Bad News

Hawkeye, I agree with you to in force laws for littering. Let me tell you a stories. This fall we opened up our property so people could walk in to Utah lake for duck hunting. I admit it is a 1/4 mile walk. They drove in. Now we decided wi th the cows off the mtn we needed to take precautions so gates kept close. We locked up the gates. Sunday I was looking things over and when I got there, the gate was open, the locks cut, cows out, and tire tracks through the field. As I got closer to the lake, the fence had been cut so they could get their truck close to the water I am guessing so they didn't have to carry their decoys. I also found a cow full of buckshot that will have to be put down. How do you in force the current laws. We can't be down there all the time, we have life's yo live. The sheriffs office said they try patrolling as much as possible. How do you enforce the laws when everything is being done. Now we have no idea how to be polite to hunters but protect our property. True only a small amount of hunters do this but it affects all hunters. Now no one will be allowed in, even the good guys.
 
RE: Good and Bad News

>Hawkeye, I agree with you
>to in force laws for
>littering. Let me tell
>you a stories. This
>fall we opened up our
>property so people could walk
>in to Utah lake for
>duck hunting. I admit
>it is a 1/4 mile
>walk. They drove in.
>Now we decided wi th
>the cows off the mtn
>we needed to take precautions
>so gates kept close.
>We locked up the gates.
> Sunday I was looking
>things over and when I
>got there, the gate was
>open, the locks cut, cows
>out, and tire tracks through
>the field. As I
>got closer to the lake,
>the fence had been cut
>so they could get their
>truck close to the water
>I am guessing so they
>didn't have to carry their
>decoys. I also found
>a cow full of buckshot
>that will have to be
>put down. How do
>you in force the current
>laws. We can't be down
>there all the time, we
>have life's yo live.
>The sheriffs office said they
>try patrolling as much as
>possible. How do you enforce
>the laws when everything is
>being done. Now we
>have no idea how to
>be polite to hunters but
>protect our property. True
>only a small amount of
>hunters do this but it
>affects all hunters. Now no
>one will be allowed in,
>even the good guys.

There's no excuse. To be honest no one blames you for your reaction. But, if the sheriff can't be there, what good does a law do? Guys that would shoot a cow, aren't gonna care about trespass laws.

Beyond that no one is suing to use your road on your property. Streams are different.

But you should be pissed. Just know a lot of us take this crap personally. No matter how much we try to treat private land as our own, you always get these guys. And I've never blamed a paddlelock. id do the same.


"The only thing that stops a bad guy with a gun is a good guy with a gun"
 
RE: Good and Bad News

Birdman---That obviously sucks the big one, but may I offer a suggestion? Maybe if you know who the good guys are you could allow a select few in to get to the lake and maybe letting them have limited access that would help you control the riffraff that pulled that BS on your property. Just a thought!
 
RE: Good and Bad News

Ken-

That is a bummer but it is a separate issue. Good on you for voluntarily allowing public access to your private property. I am sad and disappointed that some folks abused that privilege. Given that you own that land, you have the right to revoke that privilege if you so choose and exclude the public from your private property.

In contrast, private landowners do not own the rivers and streams. Pursuant to the Utah Consitution, they are owned by the public. If folks are leaving the river and trespassing and littering then go ahead and prosecute them. What landowners do not have the right to do is shut down access to the rivers and streams, which they do not own. Do not punish law-biding sportsmen and attempt to revoke our rights for the bad acts of a few. I understand that as a property owner you may have concerns about public access to your property. But I would hope that SFW, as a sportsman's group, would advocate in favor of the rights of sporsmen. Let's see if they get that right the next time around.

-Hawkeye-
 
RE: Good and Bad News

I know my situation us different than t he stream access. As I talk to people about the stream access lots of property owners are not concerned about people in the stream, but how they get their access. Much like our situation. As long as people keep the rules things are fine. It his the gates that are left open, damage done,and littering. I understand true sportsmen mind the rules, but the people who don't cause the problems for all.
For those blaming SFW on the current issue of stream access. I have been appointed to represent SFW this issue. I have been instructed to be neutral In my voting and statements which is hard for me. At the USC I ASK for a change of rules as me abstaining from voting on this issue and others that pertain to it without majority no backing will be given. That has changed now and I can stay neutral without affecting the outcome. SFW"s true stance on stream access right now is neutral. I know there is some that will not accept this but it is the way it is.
 
RE: Good and Bad News

Birdman-

Please explain why SFW is remaining neutral rather than advocating in favor of stream access sportsmen. Thanks.

-Hawkeye-
 
RE: Good and Bad News

Neutral. LMAO!!!!! Just like Switzerland.
Just like they're neutral in Utah's attempted land grab. They're stance is neutral with anything the Utah legislators do to screw Utah sportsmen.
I have a prediction, $FW's stance on Utah's new national park will be neutral too.
What a spinless pile of crap organization.
 
RE: Good and Bad News

Interesting that SFW has taken a neutral stance. I don't buy it, because I've been in the meetings in the past, but if they are truly neutral, and even behind closed doors remain neutral, then they have changed their tune.

Not changed it enough, of course. Because any organization that claims to represent sportsmen, that won't stand up for sportsmen, well...isn't an organization for sportsmen. I wish they went to a favorable recommendation, but I'll take neutral over fighting AGAINST sportsmen like they have before.

Baby steps, I guess.
 
RE: Good and Bad News

Let's make the water even more muddy. Or lower...is a "navagatable" stream navagatable all year? Or seasonally? May June July.there are some that are floatable you will " not break the close" touch bank or bottom..(trespass) Come August you can not float with out touching...
This is Colorado. You can't wade. The stream bed is private..Your thoughts? The paddle board outfitters are impacting herons in their rookeries and our fawn rearing willow patches. Thoughts on floating?
 
RE: Good and Bad News

Not here to argue anything. We are still a few years away from this being settled. Even if the courts say ok the Stream access coalition is saying that the state still needs to set boundaries.
 
RE: Good and Bad News

Not really. If the Utah Supreme Court rules in favor of the public on the Provo River case, it will immediately open up most waters throughout the state. That being said, the state legislature may step in again and attempt to pass laws attempting to address access but hopefully they'll pay attention to the Utah Constitution and the rights of the public next time.

By the way, I am not looking for an argument. I am just trying to understand why a ?sportsmen?s group? would not actively fight for the rights of sportsmen. Let the landowners associations look out for the rights of landowners.

-Hawkeye-
 
RE: Good and Bad News

Come on counselor!

Why would $Fw not want to piss of....

A.The landowners whom own expensive parcels, likely the kind with a little pocket change for banquet tags.

B. CWMU owners who have hunt spots with guaranteed tags for $FW "donors".

Thought we all grasped who $fw membership is that gets a voice in the statehouse.



"The only thing that stops a bad guy with a gun is a good guy with a gun"
 
RE: Good and Bad News

The group "Sportsmen for Fish and Wildlife" is for "Sportsmen" as much as the "Public Water Access Act" was about protecting "Public Water Access".

Grizzly

-----------------------------------------

"It's time to revisit the widely accepted principle in the United States and Canada that game is a public resource."
-Don Peay, Founder of SFW, as quoted in Anchorage Daily News
 
RE: Good and Bad News

Thanks for chiming in boys with your opinions but I would prefer to hear SFW?s designated rep on stream access explain why SFW is taking a ?neutral? position on this important issue.

Birdman?

-Hawkeye-
 
RE: Good and Bad News

Not many consequential waters in Utah that have historical navigability.

No where near the 2700 miles of stream bed that the "right" to trespass crowd are always harping on.

Navigability that is all you get, and you will have to scratch and claw for that,,, inch by inch.

Sorry.
 
Colorado has a case going to the state Supreme Court too. I am a crazy firm believer in public access but my spider senses are tingling feeling like somehow WOTUS based upon states responses could somehow come into the state or federal level creating a new era of unintended consequences. Be watchful, suspicious, and ask questions.
 
Perhaps Vanilla can provide an update? Last time I checked, the Provo River case was still pending before the Utah Supreme Court.
 
Vanilla said:
>Dammit!! Now every time I turn
>on my sprinklers some damn
>fly fishermen is going to
>go trespassing through my yard.

^^^LOL! I actually personally watched Don Peay make this exact argument to a legislator. She didn't buy it, and he looked silly.
Click to expand...

Wasn't the first time that day, I'm sure.
 
grizzly said:
Whatever happened to the Utah Stream Access case?

It looks like New Mexico had some success with their court case.

ravallirepublic.com

New Mexico Supreme Court finds stream rule unconstitutional

ALBUQUERQUE, N.M. (AP) — The New Mexico Supreme Court determined Tuesday that a rule allowing private landowners to limit public access to streams and rivers is unconstitutional and contrary to
ravallirepublic.com ravallirepublic.com
Click to expand...
Did you notice which sportsmans groups opposed it? That’s right - the fishing outfitters.
 

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