From: Brett Roper
To: Dean Sanpei, Ken Ivory, Eric Hutchings, Brian King, John G. Mathis, Curtis Oda, Lee Perry, Val Peterson, Paul Ray, Larry Wiley,
Subject: Move House Bill 37 on and get it passed.
Date: Fri Feb 21 03:09:24 MST 2014
Body:

The primary argument against enacting HB 37 is the bill represents an illegal taking of private property.  The people making this argument clearly don’t understand the history of rulings within this state.  In both 2008 and 2013 (and many times before) a Utah court ruled recreationist have a legal easement on streams. An easement is a non-possessory interest in another person’s property.  Even though the easement does not grant ownership, it is still a property right.  The State of Utah argues they have similar road access across on Public Lands using this exact same argument (using Revised Statute 2477).        

            Some will argue the granting of an easement is a legalistic maneuver.  They follow this point with the argument that it is not constitutional and conjure up the names of the founding fathers to support this conclusion.  But the understanding of private property at the time our founding fathers is not the same as it is now.   

            One of the most influential thinkers on private property at the time was John Locke (1632-1704).  John Locke stated “Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property.   Based on this understanding streams would seldom be private property because they cannot be easily removed from their common state of nature by human labor. 

            House Bill 37 does address this concern specifically eliminating access to constructed stream channels and wetlands.  While the line between a constructed an improved stream channel may be difficult at times to define, it is a distinction our founding fathers surely would have supported.

           Overall, House Bill 37 is a reasonable bill and should become law.  I urge you to give the governor a chance to sign this bill.