Eroding Rights

by Steve Schmidt

Recently, the Utah Legislature passed a controversial bill, HB141, that dramatically alters access to many of the state’s public waters — resources that are vital to Utah’s outdoor industry, tourism and its image as a recreation-friendly state. Of those outdoor industries most affected by this piece of legislation, fishing will bear the brunt of this restrictive burden; a robust sector that peaked in the 1990s, with 450,000 license holders and revenues grossing $750 million in annual sales. Surprising to many, these substantial revenues surpassed the state’s most visibly promoted recreational industry: skiing.

In July 2008, a unanimous decision by the Utah Supreme Court permitted recreational users to access the state’s public waters including those that flowed through private property, yet it did not permit them to do so by trespassing. They could only access or exit these waters through public access points. This set the table for a number of highly controversial bills in Utah’s 2009 and 2010 legislative sessions and pitted recreational users against those with private property interests.

At the foundation of the court’s decision was the long-standing right that the public owns the water in the state of Utah. As a result of that ownership, the courts recognized that the public has the right to recreate upon the state’s rivers and streams, even those that run through private property. This ruling is similar to laws in Idaho and Montana — laws that have significantly bolstered their respective states’ economic opportunities and images. The 2008 Supreme Court decision put Utah on equal footing with these states, fostering new opportunities at a critical time on many economic fronts.

In all, three controversial bills arose from the 2008 Supreme Court ruling. The first, HB187 sponsored by Rep. Ben Ferry during the 2009 session was defeated after an intense battle between anglers and those who supported private property interests. In 2010, two additional bills arose: HB141 and HB80. Of those, only one — HB141 — passed the House and Senate.

For anglers, businesses and the state, HB141 has many serious implications. HB141 expunged the 2008 Supreme Court decision and repealed 75 years of court rulings that recognized public ownership of the state’s waters and their rights to recreate upon them. Many of the state’s waters impacted by HB141 have been open to fishing for generations. These closures will have a dramatic effect on local businesses, independent guides and outdoor recreationalists that depend on access for their livelihoods and a quality of life that Utah has become known for. HB141 significantly alters much of that.

Prior to the governor’s stroke of approval, members of the state’s outdoor community, led by Outdoor Industries Association president Frank Huglemeyer, met with the governor and his staff to discuss the impact this bill would have on the state’s image, the Outdoor Retailer Expo and Utah businesses. Despite protests from these leaders and others, the governor eventually signed the bill.
When HB141 became law, the impact to the public and businesses was immediate. Doug Erdmann, vice president of the Marinette Chapter of Trout Unlimted, wrote to me in a letter: “I was planning a trip with my uncle and I was hoping to use your guide service in Utah to fish this fall. After reading the article in American Angler, ‘Closing the Gates’ (July-August 2010), we have decided not to come to Utah. This is unfortunate because I have never had the opportunity to fish your state, but it sounds like Utah is no longer flyfisher friendly. We will look to Montana for our trip and better stream access laws.” This is just one of many such letters, phone calls and e-mails that outfitters have received. Looking at the big picture, however, it isn’t just the outfitters who are impacted — hotels, restaurants, rental car agencies, gas stations, cabs, the state and others will all be affected.

Steve Schmidt owns and operates Western Rivers Flyfisher, and was one of the governor’s founding members of the Utah Blue Ribbon Fishery Council. In 2007, he was awarded Flyfishing Retailer of the Year.