Senate shouldn't pass streambed bill

The Utah Supreme Court, by a 5-0 vote in 2008, decided in Conatser v. Johnson that fishermen have an easement to walk up and down privately owned streambeds, so long as this is reasonable under the circumstances. The Utah House recently passed HB141, which will overturn the 2008 Conatser decision if the Senate also passes it.

The main argument in the House for passing HB141 was that allowing a fishermen's easement on private property violates the Utah Constitution by taking property rights without compensation. This argument appears valid on the surface, but it falsely characterizes the Conatser decision as being against freedom, liberty and the constitution. It also exaggerates, ignores and misrepresents the facts.

The Senate should not pass HB141 because:

1. The state owns the water and the benefits from the water. What constitutional private property rights are lost by the easement? In rural areas, streams may be used for watering livestock, irrigation and other purposes. If recreationists interfere with these activities, their presence is unreasonable and not allowed under Conatser. There is no inherent conflict of purposes, however.

What about privacy and pride in ownership among streamside property owners? Should a fisherman be denied an easement to fish on private streambeds? The answer is no, for the following reason: The value of the stream results from the water in the stream, not the streambed. Because of the public ownership of the water, the aesthetic qualities resulting from this ownership should benefit the public (including the landowner). If land was purchased for the reason of obtaining exclusive use or enjoyment of a stream, the purchase was made by mistake.

If this mistaken pride in ownership (of what is not owned) is subtracted from the current debate, the remaining landowner complaints are not enough to keep fishermen off the public's waters.

2. Uncompensated taking: Who's taking from whom? What about uncompensated taking of public property by the exclusive use of the water by landowners? If landowners were compensated for the public use of their streambeds by fishermen and then had to turn around and pay the state for the value that the water provides to them, including its aesthetic value, the state would make money. Would a landowner rather have a stream on his land with fishermen on it, or no stream and no fisherman?

3. HB141, combined with Section 76 6 206.3 of Utah law, would prohibit almost all stream fishing on private land.