(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 (more…)