Thanks to fellow BFT members posting of the Supreme Court decision, I headed to a private section of the Provo on Saturday and had a rather unpleasant confrontation.
This raised a question that I hope someone out there has a good answer for. My understanding is that any public highway that crosses a stream is a public access point for the river (assuming of course that there is a place to park). I believe there is a public easement that extends several feet on either side of the road. Does anyone have any answers on this? I am excited by the new opportunities created by the court decision, but still want to be respectful of private property. Thanks.
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While the Utah Supreme Court decision is a potential win for Utah fisherman I don't know that assuming there is an easement is the best way to go about things. I am with you, I would think that given your scenario you would be within your new found rights, however I think I would probably find out what the state considers a public access point.
I am certain that there will be no shortage of mad property owners looking for a fight when they catch you fishing in what they formally deemed "their" river. I am sure you, like everyone on this board will handle any situation arising from this new ruling with delicacy and finesse.
I have many times in then past felt as though it was better to beg for forgiveness rather than ask permission when circumstances left room for interpretation however I get the feeling that landowners are going to make sure all of us fishing "their" water got there by following the letter of the law, as vague as it might be.
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You can only have access in the river TO the high water mark....Not just along the river shore line...
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Just curious if it indeed indicates "high water mark" in the Supreme Court ruling. I read through it once however I missed that part. I was under the impression that you had to be wading through the water to be within your rights. I am sure there will be a few more rulings that will need to come down in order to sort out the little details such as this, as for me I will stick to keeping my feet wet if I even think I am on private property, I say better to be safe than sorry.
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I read it and understand it as this:
You must enter the water at a public access point(bridge, public access, or the like) and you have to stay within the high water mark unless you are confronted with an unpassable area in which you can leave the river to go around the obstacle but must immediately re-enter the high water mark thereafter. That is how i read it. I might be wrong but that is my story and i'm sticking to it.[sly]
P.S. I am awaiting a reply from the DWR on this very topic and what they will enforce and where the law will be set. It might even go further than that and i will get the Morgan Sheriffs offices interpretation.[
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The judgment does NOT say anything about the "high water mark" being any sort of boundary. It does discuss being in contact with the riverbed, in the water.
http://www.utcourts.gov/opinions/supopin...071808.pdf
The Montana law demarcates the high water mark as the boundary and this is possibly where some people are assuming that the Utah law is the same.
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The key to the entire ruling is that "incidental" use of the banks, access points and "streambed" is so connected to the "right" to recreate on the stream that it cannot be prevented by the proper posting of the land.
This would indeed allow the access from any public road or bridge.
No mention of any "watermark" was written in the ruling. Constant reference to the "streambed" is in the ruling. "I" would reason this to mean any part of the land that at any time was covered by water is a part of the "streambed"
Lets all also be aware that if you are confronted by any LEO for tresspassing, that a complaint is filed against the land owner for "Harrasment" of a person legally engaged in hunting or fishing. While this will set up some animosity amung land owners it will very quickly establish what is allowed and what is not in the courts.
When I am confronted by a land owner, and I'm sure I will be, I will dial the DWR hotline instantly and get a DWR officer on the scene as soon as possible, hopefully before the landowner gets a sherriff there. Then the DWR and Sherriff can decide who gets what.
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Quote:Thanks to fellow BFT members posting of the Supreme Court decision, I headed to a private section of the Provo on Saturday and had a rather unpleasant confrontation.
The thread title indicates you were kicked off the river, but your post just says you had an unpleasant confrontation. Please tell us what really happened so we can be better prepared ourselves in a similar situation. Here are some questions I have about your incident.
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What did the land owner say to you?
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Did you tell him about, or show him a copy of, the Utah Supreme Court decision concerning public use of state waters?
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If you did, what was his reaction?
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Did you inform any law enforcement agency about the incident?
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If you did, did they know about the USC decision and what was their reaction?
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We are all going to be going through a learning process and the more information we have, the better off we are going to be to defuse future confrontations.
PS: What part of Michigan do you hail from? I'm a South High School (Grand Rapids) Class of '60 grad myself.[/size][/#800000][/font]
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I have a little bit more information that may be helpful. A buddy and I hit a section of the Provo this morning. My friend was standing on the edge of a small gravel island and someone paid by the landowner stood on the bank and took his picture. The man with the camera proceeded to tell my friend that he had trespassed and that he needed to leave or else the sheriff would be contacted. The man indicated that the supreme court ruling was vague and that the landowner was taking the position that "streambed" means "in the water." I can appreciate why the landowner would take this position and do not fault them. We were polite and went and fished somewhere else.
I share this so that everyone is aware that this is probably where landowners will be coming from. Stay in the water if you want to avoid an unecessary confrontation.
Ultimately, (as long as the legislature does not overturn the court decision) I think it will be best for the health of the rivers and fish to define the streambed at the high water mark and to allow for anglers to leave the water to get past obstructions or for safety's sake (as is common in other states like Michigan or Montana).
If we keep everyone in the water, then a lot of the streambed could be negatively affected. Think what would happen to spawning beds on the Upper Provo if anglers were required to slosh through them to access the river. I am looking forward to some clarification from the DWR. I wonder if it would be helpful to talk with our legislators to encourage passage of a law establishing some ground rules (define the streambed, etc) to avoid lengthy litigation of every little detail.
In answer to your question about my origins, I grew up north of Detroit (Royal Oak and a couple of other places). Glad to hear there's another Michigan Native on the board. I sure miss the steelhead!
Here's a quick picture from this morning's excursion.
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We should all be prepared for this situation. Carry our own camera, take our own picture and have the landowners agent cited for harrassing a person legally engaged in fishing.
As was mentioned above about the legislature changing the rules, they will try, now is the time to be writing our represenatives and letting them know to not even think about it. As far as them changing the ruling, they canot. They can only pass new laws that sway the rights to the land owner. This we must prevent.
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Troll wrote:
Quote:I will dial the DWR hotline instantly and get a DWR officer on the scene as soon as possible, hopefully before the landowner gets a sherriff there.
It is reasonable to assume that you are looking at over an hour wait for a response in a non-emergent situation from both Sheriff and CO's; particularly if you are in a remote area. You gonna wait that long? And are you gonna keep fishing in the meantime?
Do you think if both you complainants have your LEO show up (around the same time) they're gonna publicly disagree about law while you and the landowner, the respective complainants, are standing there?
Do you think if a LEO from one Agency shows up first, and is aware that a LEO from another Agency has been contacted (as a counter-complaint), that LEO is going to make an on-the-spot decision that might controvert the "opposing" LEO?
Quote:Carry our own camera, take our own picture and have the landowners agent cited for harrassing a person legally engaged in fishing.
You mean
attempt to be cited.
Your black and white answers probably, not possibly, don't apply here. Particularly if this law is going to be administered as a
civil, instead of
criminal violation. (And I don't know the answer to that)
And even if it's criminal, stream-fishing and its potential for being trespass is hardly going to be a pressing matter for LE. Just because the USC has recently made this issue a "current event", it doesn't mean it's a priority for everyone else.
Not trying to give you a hard time, Troll, jes offering up a reality check.
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If you want a reality check read the first post in this thread.
You have a very narrow outlook on this. What if the land owner ha a weapon or makes a threat? Tell that to dispatch and see how long it takes to get a response.
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Quote:You have a very narrow outlook on this.
Narrow my eye. I read the first post and it NEVER mentions being confronted with a weapon. That's why I replied with "Non-emergent" call to LE.
Quote:What if the land owner has a weapon or makes a threat?
"What if, what if." For heavens sake, change the situation and introduce a weapon, and of course it will change my answer. And furthermore, now LE is responding to a situation that has nothing to do with trespass, it now has to do with armed assault.
Until then, in a non-emergent trespass complaint, everything I wrote still stands.
Proceed with your own vast knowledge of law at the risk of not having your expectations met.[crazy]
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I have heard in the past, that the fish and game is much higher in the government then the sheriff. so the fish and game have the final say. From what i had heard. can someone clarify. Pineviewfisher
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I would understand a public access point as a point designated for public use. If a landowner has a road going through his property wouldn't it still be his property after the easement and before the water?
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this land owner seems to be hardnose. i dont get that its all that big of deal unless dammadging his stuff. some people dont get that fish swim up or down stream on and off his dirt. they are wild and free. land owners are the same way with big game. but if the forrest service put game fences around private dirt in summer the deer and elk would never enter his dirt again. now he will say the dwr dont own the elk. selfishness. own the land but let all enjoy what gifts the mother provides. [fishin]
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I wish I owned land myself. I don't but if I made the investment I would have made the investment to have private land to hunt and fish on. I agree that if you enter at a public access point you should have the right to fish up and down the streams. I disagree that you should have the right to cross anyones property to get to the water. As for big game, they are surviving off of the food provided on the land owners property (natural and supplemented by the ranchers), I only have one friend who's uncle owns a ranch. I was lucky enough to get a cow elk tag from him one year. He would just as well have every elk ran off his ranch because he feeds his cows only too watch the elk come in and eat the hay he just put out for his cows. Elk are way more aggressive then domestic cattle.
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landowners get depro tags to sell and make up for what the elk eat. but he pays 3 dallors a month per cow to feed on national forest free range. tell me those cows are not eating alot moore than 3 dallors a month. if they had to feed the catle its moore like 3 dallors a day each for hay. and their would be moore forage to keep the elk above if the cows and sheep were not aloud on the foot hills just the high country. just another cycle for every action ther is a reaction. feed the cows the wild grass for cheep and feed elk expensive hay and bitch about it. i have a good freind with 3000 plus on dimond mountain. he gets over 50 tags each yr. sells the for 300 dallors each. 15k is alot of hay. he sells trespass permits for up to 3000 grand. he loves the elk to come in and why not? free money. some land owners figure out a win win others jst gripe about it.
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Quote:I have heard in the past, that the fish and game is much higher [#000000]in[/#000000] the government then the sheriff
[#000000]That is gray. A sheriff is a State LE, whereas F & G is Federal. There have been many challenges by a Sheriff v. Feds for supreme authority in a [/#000000][#000000]County. Sometimes they win, sometimes they lose. But I think you mean a DNR CO, which is State LE.[/#000000][font "Arial"][#000000][size 3]
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Neither side is going to test their authority over stream-fishing. While I understand it is important to you, it is hardly of importance in the grand scheme of clarifying authority.
So, while any angler is thinking their dial-a-cop routine is going to result in immediate gratification, what's more likely is that LE, IF they come out, is going to tell BOTH parties to knock it off, or they're both gonna get arrested.
What do I mean by "knock it off"? He's gonna tell the landowner to STFU and quit harassing angler in light of the USC decision, and he's gonna tell angler that if he takes ONE step above high water mark for anything other than incidental travel, he's gonna arrest his butt for trespass.
That's the reality.
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Nobody should be going out and fishing these private stretches yet. Nothing is set in stone and the DWR has not released anything on the subject yet. I have called them 3 times already and they advise everyone to stay away from fishing these stretches until they can get proper forms and written laws to give out to fisherman.
How many people do you think are aware of this? Not too many. You can't just waltz out there and expect everyone to know that you are abiding the law. Is it really worth aurguing with Landowners, Police, and COs just to catch some fish? Just hold your horses until they get it all figured out and then we can have some fun.
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