H.B. 208 should be opposed in my opinion, and I urge you to contact your representative to let them know. NOT EVERYONE WILL AGREE WITH ME, AND THAT’S O.K., its your right to do so. But here is the letter I wrote to my representative, Kera Birkeland today. Feel free to copy and paste my letter as your own to your representative. Act quickly, since this is the type of bill that gets passed quickly in the late nights just prior to the legislative session ending.
Dear Rep Birkeland,
I am writing to you to ask that you please oppose H.B. 208. This bill capitalizes on lack of clarity of which rivers in Utah are “navigable” and “non-navigable” and authorizes law enforcement to issue a class B misdemeanor to individuals who touch the streambeds and banks of non-navigable waterways that flow through private land. While I support measures to protect private property rights, i.e., enforcement of existing trespass laws that have been codified in the Public Waters Access Act, among others, this bill is sure to cause further confusion from both an access and enforcement perspective because the navigability status of many of our rivers and streams has yet to be determined. The Utah Stream Access Coalition’s navigability lawsuit on the upper Weber River was successful in restoring access from Holiday Park to Echo Reservoir, the navigability status of our other major waterways remains unsettled. H.B. 208 exploits this gray area.
Furthermore, the ability to enforce H.B. 208 is dependent on a river or stream being “non-navigable” and flowing through privately owned land. Utah’s legislature and state agencies have been unable (or unwilling) to define which rivers are “navigable” and therefore open to public use, or “non-navigable,” and subject to the penalties proposed. Yet this bill requires that critical distinction to be made without a proper review of historical use supporting navigability. This could result in several of our major, and arguably navigable, rivers being closed to public use.
Current trespass laws, in conjunction with the Public Waters Access Act, already prohibit the touching of privately owned stream beds without the permission of the owner of those beds. See Utah Code Sections 73-29-101 et seq. (Public Waters Access Act), 76-6-206 (Criminal trespass – general), 76-6-206.3 (Criminal trespass on agricultural land or range land) and 23-20-14 (Criminal trespass while hunting or fishing). The penalties in these existing provisions are the same as those in H.B. 208, which makes this proposed legislation superfluous and redundant.
H.B. 208 fails to establish any repercussions for landowners misrepresenting a navigable stream or river as a non-navigable stream or river, or harassing, or seeking the citation and/or removal of a member of the public exercising their legal right to use the beds and banks (up to the Ordinary High Water Mark) of navigable streams or rivers of the State for lawful recreational purposes that utilize the water. Simply put, it’s not up to landowners or the Legislature to decide which rivers and streams are non-navigable, it depends upon their historical use by the public.
The Utah Supreme Court is currently deciding the Utah Stream Access Coalition’s appeal on the Provo Case, which addresses the threshold question of whether the public has a constitutional right to touch privately-owned stream beds while engaged in recreational activities that utilize the publicly-owned waters of the State. The Court heard oral arguments in the matter of Utah Stream Access Coalition v. VR Acquisitions, LLC (Victory Ranch) on January 9, 2023, and the matter is presently under advisement. Enactment of H.B. 208 in advance of the Supreme Court’s ruling in this case is bound to create confusion for law enforcement and the public alike.
Thank you Kera for representing us here in Garden City.
Scott Xxxxxxxx
PO Box XX
Garden City, UT 84028
435-881-XXXX
xxxxx@yahoo.com
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