Rep. McIff Claims Constitution Protects Property Rights, Not Stream Fishing Rights
(Opinion piece by Rep. Kay McIff in Salt Lake Tribune, April 10, 2010)
Advocates for forcing public access to streams, against the will of landowners, have advanced a raft of theories all designed to circumvent or trump the Utah Constitution’s prohibition against “taking or damaging private property for public use without just compensation.”
They have harkened back to the Magna Carta, the laws of England, Spain, the Roman Empire, Greece, the laws of the early American colonies and, most recently, Brigham Young. The exercise may be interesting and educational, but in the end the controlling document remains the Utah Constitution. It cannot be made subservient to other laws at other times and places.
If the effort to bypass the Utah Constitution were successful, what would be put in its place to protect private property rights listed by the framers as “inalienable” and second only to the rights of life and liberty? There is little comfort in the court-created easement in the Utah Supreme Court’s 2008 Conatser v. Johnson decision because it lacks constitutional side-boards and could be expanded by judicial or legislative fiat deemed necessary to make effective the public’s enjoyment of the easement.
Rep. McIff, Governor Herbert, and others, are taking considerable heat for this ill advised taking of public property and giving it to the adjacent land owners. The idea that the public doesn’t own the rivers and streams and reasonable access to them just doesn’t fly. Those who bought property alongside our rivers, streams, and lakes are just like those who bought property adjacent to our roads and sidewalks.
The Conatser decision necessarily relied upon a statute. The delegates to the Utah Constitutional Convention in 1895 had declined to declare public ownership of water, even though our neighboring states had done so. The reason may be found in the fact that Utah had been settled for almost 50 years and most of the water had already been appropriated. Delegates were uneasy about declaring public ownership, fearing it would compromise private vested rights. Hence, Article XVII, Section 1 of the Utah Constitution looked only through the rear-view mirror and protected only “existing rights.” It provided no guidance for the future.
Eight years later, the 1903 state Legislature adopted an extensive water code declaring public ownership of water, appointing a state engineer, fixing the procedure for acquiring the unappropriated water and authorizing the use of eminent domain to acquire rights of way for the beneficial use of water. All rights of way, even for the most basic uses of water, required payment of just compensation.
Beneficial uses identified in the debates and statutes related to irrigation, industrial, mining, milling, manufacturing, livestock watering, domestic and culinary. While the statutory scheme has been tweaked from time to time over the years, it remains largely intact. Noticeably absent for most of our history has been any reference to recreational use. It first appeared in 1971 when the Legislature required the state engineer to consider the impact on public recreation in reviewing applications to appropriate water or to alter the natural channel of a stream.
The 1971 changes reflect the post-World War II preoccupation with recreation, but add nothing to a constitutional or statutory analysis which predates their enactment. They cannot be used to rewrite the history of Utah water law, nor to overpower the constitutional protections previously afforded private property owners. The relative rights of landowners and recreationists can best be examined by reviewing the historical trespass laws, cases arising from those laws, and the wildlife proclamations which until Conatser cautioned sportsmen not to go on private land without permission.
Times have changed and so have public demands. After Robert Redford’s film “A River Runs Through It,” fly-fishing has taken on a greatly expanded and romanticized dimension. It’s a wonderful sport, but fishermen should not presume the right to disregard “No Trespassing” signs or to trample the constitutionally protected rights of others. That has not changed and is not subject to disregard based upon public clamor and an expanded sense of entitlement.
The Legislature has set up a task force to evaluate future options stemming from House Bill 141, which was passed by the Legislature and signed into law by the governor. That is completely appropriate, but the public must understand that the Legislature is not free to do as it pleases. In a 1990 decision, the Utah Supreme Court addressed the restraints imposed by the state Constitution, Article I, Section 22, the so-called “taking” clause. The court stated: “The framers of the Utah Constitution expected it to act as a real limit on the powers of the state. The framers certainly did not intend to allow state government to override the constitutional guarantee with a legislative enactment.”
The court went on to apply this restraint to itself, overruling several prior decisions. (See Coleman v. Utah State Land BD). It also made clear that the restraint applies to “every department of the state government.” The legislative task force should move forward, keeping in mind that the court will likely hold it to the same standard.
Rep. Kay McIff, R-Richfield, sponsor of House Bill 141, represents District 70 in the Utah House of Representatives.