Second Substitute H.B. 141

Senator Dennis E. Stowell proposes the following substitute bill:

1 RECREATIONAL USE OF PUBLIC WATER ON
2 PRIVATE PROPERTY
3 2010 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Kay L. McIff
6 Senate Sponsor: Dennis E. Stowell
7
8 LONG TITLE
9 General Description:
10 This bill addresses public use of public waters on public and private property.
11 Highlighted Provisions:
12 This bill:
13 . makes legislative declarations concerning constitutional protections for private
14 property and related matters;
15 . provides liability protection for owners of private property beneath or adjacent to
16 public waters;
17 . defines terms;
18 . recognizes a limited recreational floating right on public water;
19 . outlines circumstances under which the public may acquire recreational access to
20 public water on private property;
21 . provides a process for the declaration of the right to certain public recreational
22 access based on historical adverse use;
23 . provides for injunctions;
24 . addresses the chapter's effect on other uses of public waters;
25 . requires a person using a public access area to remove refuse and personal property;

26 . addresses fences across public water; and
27 . makes technical and conforming amendments.
28 Monies Appropriated in this Bill:
29 None
30 Other Special Clauses:
31 This bill provides an effective date.
32 Utah Code Sections Affected:
33 AMENDS:
34 57-14-4, as last amended by Laws of Utah 1997, Chapter 62
35 73-1-1, Utah Code Annotated 1953
36 ENACTS:
37 73-29-101, Utah Code Annotated 1953
38 73-29-102, Utah Code Annotated 1953
39 73-29-103, Utah Code Annotated 1953
40 73-29-201, Utah Code Annotated 1953
41 73-29-202, Utah Code Annotated 1953
42 73-29-203, Utah Code Annotated 1953
43 73-29-204, Utah Code Annotated 1953
44 73-29-205, Utah Code Annotated 1953
45 73-29-206, Utah Code Annotated 1953
46 73-29-207, Utah Code Annotated 1953
47 73-29-208, Utah Code Annotated 1953
48 REPEALS AND REENACTS:
49 57-14-1, as last amended by Laws of Utah 1997, Chapter 62
50
51 Be it enacted by the Legislature of the state of Utah:
52 Section 1. Section 57-14-1 is repealed and reenacted to read:
53 57-14-1. Legislative purpose.
54 This chapter's purpose is to limit the liability of public and private land owners toward a
55 person entering the owner's land as a trespasser or for recreational purposes, whether by
56 permission or by operation of Title 73, Chapter 29, Public Waters Access Act.

57 Section 2. Section 57-14-4 is amended to read:
58 57-14-4. Use of private land without charge -- Effect.
59 (1) Except as provided in Subsection 57-14-6 (1), an owner of land who either directly
60 or indirectly invites or permits without charge or for a nominal fee of not more than $1 per year
61 any person to use the land for any recreational purpose, or an owner of a public access area
62 open to public recreational access under Title 73, Chapter 29, Public Waters Access Act, does
63 not thereby:
64 [(1)] (a) make any representation or extend any assurance that the premises are safe for
65 any purpose;
66 [(2)] (b) confer upon the person the legal status of an invitee or licensee to whom a
67 duty of care is owed;
68 [(3)] (c) assume responsibility for or incur liability for any injury to persons or property
69 caused by an act or omission of the person or any other person who enters upon the land; or
70 [(4)] (d) owe any duty to curtail the owner's use of his land during its use for
71 recreational purposes.
72 (2) This section applies to the relationship between an owner of land and a trespasser.
73 Section 3. Section 73-1-1 is amended to read:
74 73-1-1. Waters declared property of public.
75 (1) All waters in this state, whether above or under the ground are hereby declared to
76 be the property of the public, subject to all existing rights to the use thereof.
77 (2) The declaration of public ownership of water in Subsection (1) does not create or
78 recognize an easement for public recreational use on private property.
79 (3) The Legislature shall govern the use of public water for beneficial purposes, as
80 limited by constitutional protections for private property.
81 (4) The right of the public to use public water for recreational purposes is governed by
82 Chapter 29, Public Waters Access Act.
83 Section 4. Section 73-29-101 is enacted to read:
84 CHAPTER 29. PUBLIC WATERS ACCESS ACT
85 Part 1. General Provisions
86 73-29-101. Title.
87 This chapter is known as the "Public Waters Access Act."

88 Section 55. Section 73-29-102 is enacted to read:
89 73-29-102. Definitions.
90 As used in this chapter:
91 (1) "Division" means the Division of Wildlife Resources.
92 (2) "Floating access" means the right to access public water flowing over private
93 property for floating and fishing while floating upon the water.
94 (3) "Impounded wetlands" means a wetland or wetland pond that is formed or the level
95 of which is controlled by a dike, berm, or headgate that retains or manages the flow or depth of
96 water, including connecting channels.
97 (4) "Navigable water" means a water course that in its natural state without the aid of
98 artificial means is useful for commerce and has a useful capacity as a public highway of
99 transportation.
100 (5) "Private property to which access is restricted" means privately owned real
101 property:
102 (a) that is cultivated land, as defined in Section 23-20-14 ;
103 (b) that is:
104 (i) properly posted, as defined in Section 23-20-14 ;
105 (ii) posted as described in Subsection 76-6-206 (2)(b)(iii); or
106 (iii) posted as described in Subsection 76-6-206.3 (2)(c);
107 (c) that is fenced or enclosed as described in:
108 (i) Subsection 76-6-206 (2)(b)(ii); or
109 (ii) Subsection 76-6-206.3 (2)(b); or
110 (d) that the owner or a person authorized to act on the owner's behalf has requested a
111 person to leave as provided by:
112 (i) Section 23-20-14 ;
113 (ii) Subsection 76-6-206 (2)(b)(i); or
114 (iii) Subsection 76-6-206.3 (2)(a).
115 (6) "Public access area" means the limited part of privately owned property that:
116 (a) lies beneath or within three feet of a public water or that is the most direct, least
117 invasive, and closest means of portage around an obstruction in a public water; and
118 (b) is open to public recreational access under Section 73-29-203 ; and

119 (c) can be accessed from an adjoining public assess area or public right-of-way.
120 (7) "Public recreational access" means the right to engage in recreational access
121 established in accordance with Section 73-29-203 .
122 (8) (a) "Public water" means water:
123 (i) described in Section 73-1-1 ; and
124 (ii) flowing or collecting on the surface:
125 (A) within a natural or realigned channel; or
126 (B) in a natural lake, pond, or reservoir on a natural or realigned channel.
127 (b) "Public water" does not include water flowing or collecting:
128 (i) on impounded wetland;
129 (ii) a migratory bird production area, as defined in Section 23-28-102 ;
130 (iii) on private property in a manmade:
131 (A) irrigation canal;
132 (B) irrigation ditch; or
133 (C) impoundment or reservoir constructed outside of a natural or realigned channel; or
134 (iv) on a jurisdictional wetland described in 33 C.F.R. 328.3.
135 (9) (a) "Recreational access" means to use a public water and to touch a public access
136 area incidental to the use of the public water for:
137 (i) floating;
138 (ii) fishing; or
139 (iii) waterfowl hunting conducted:
140 (A) in compliance with applicable law or rule, including Sections 23-20-8 , 73-29-203 ,
141 and 76-10-508 ; and
142 (B) so that the individual who engages in the waterfowl hunting shoots a firearm only
143 while within a public access area and no closer than 600 feet of any dwelling.
144 (b) "Recreational access" does not include:
145 (i) hunting, except as provided in Subsection (9)(a)(iii);
146 (ii) wading without engaging in activity described in Subsection (9)(a); or
147 (iii) any other activity.
148 Section 6. Section 73-29-103 is enacted to read:
149 73-29-103. Declarations.

150 The Legislature declares:
151 (1) the Utah Constitution's specific private property protections, including recognition
152 of the inalienable right to acquire, possess, and protect property and the prohibition on taking
153 or damaging private property for public use without just compensation, protect against
154 government's broad recognition or grant of a public recreation easement to access or use public
155 water on private property;
156 (2) general constitutional and statutory provisions declaring public ownership of water
157 and recognizing existing rights of use are insufficient to overcome the specific constitutional
158 protections for private property and do not justify inviting widespread unauthorized invasion of
159 private property for recreation purposes where public access has never existed or has not
160 existed for a sufficient period and under the conditions required to support recognition under
161 this chapter;
162 (3) whether, or to what extent, a public easement exists for recreational use of public
163 waters on private property is uncertain after judicial decisions in the cases of J.J.N.P. Co. v.
164 State, 655 P.2d 1133 (Utah 1982) and Conatser v. Johnson, 194 P.3d 897 (Utah 2008), which
165 decisions did not address the constitutional prohibition on taking or damaging private property
166 without just compensation;
167 (4) legislative failure to provide guidance before, coupled with legislative inaction after
168 the 1982 decision in J.J.N.P. Co. v. State form a compelling foundation for the Legislature to
169 affirm a limited right to float on the water without violating the constitutional protections of the
170 underlying private property;
171 (5) the real and substantial invasion of private property rights did not occur with
172 recognition of the right to float on water that passes over the land, but with the right, first
173 recognized in Conatser v. Johnson, to physically occupy the land for an indeterminate time and
174 for a wide range of activities by the public against the owner's will and without just
175 compensation;
176 (6) its intent to foster restoration of the accommodation existing between recreational
177 users and private property owners before the decision in Conatser v. Johnson, affirm a floating
178 right recognized by the court in J.J.N.P. Co. v. State, and recognize adverse use as a
179 constitutionally sound and manageable basis for establishing a limited right of public
180 recreational access on private property in accordance with this chapter.

181 Section 7. Section 73-29-201 is enacted to read:
182 Part 2. Recreational Access to Public Water
183 73-29-201. General access provisions.
184 (1) The public may use a public water for recreational activity if the public water:
185 (a) (i) is a navigable water; or
186 (ii) is on public property; and
187 (b) the recreational activity is not otherwise prohibited by law.
188 (2) A person may access and use a public water on private property for any lawful
189 purpose with the private property owner's permission.
190 (3) A person may not access or use a public water on private property for recreational
191 purposes if the private property is property to which access is restricted, unless public
192 recreational access is established under Section 73-29-203.
193 Section 8. Section 73-29-202 is enacted to read:
194 73-29-202. Public right to float on public waters.
195 (1) There is a public right to float on public water that has sufficient width, depth, and
196 flow to allow free passage of the chosen vessel at the time of floating.
197 (2) Subsection (1) includes the right to:
198 (a) incidentally touch private property as required for safe passage and continued
199 movement;
200 (b) portage around a dangerous obstruction in the water, if portage is made in a manner
201 that is:
202 (i) most direct;
203 (ii) least invasive; and
204 (iii) closest to the water; and
205 (c) fish while floating.
206 (3) A person exercising the right this section recognizes:
207 (a) shall enter and exit the water at a point on public property or private property with
208 permission of the owner; and
209 (b) may not stop on private property.
210 (4) (a) The right this section recognizes does not prevent the establishment of broader
211 public recreational access in accordance with this chapter.

212 (b) Notwithstanding Subsection (4)(a), the right this section recognizes does not
213 establish broader public recreational access.
214 Section 9. Section 73-29-203 is enacted to read:
215 73-29-203. Establishment of public recreational access.
216 (1) Public recreational access is established if:
217 (a) the private property has been used by the public for recreational access requiring the
218 use of the public water for a period of at least 10 consecutive years that begins after September
219 22, 1982; and
220 (b) the public use has been:
221 (i) continuous during the season conducive to the recreational access;
222 (ii) open and notorious;
223 (iii) adverse; and
224 (iv) without interruption.
225 (2) The permissive use of a public water on private property granted by the owner is
226 not an adverse use.
227 (3) (a) A property owner's overt act intended to interrupt uninvited recreational access
228 is a sufficient interruption to restart any period of use that may have already begun under
229 Subsection (1) if the evidence, taken as a whole, shows that the act came to the attention of the
230 public or resulted in actual interruption.
231 (b) If an overt act is established in a final judgment to have interrupted recreational
232 access, no other person may challenge the existence of the overt act in a subsequent action.
233 (4) The extent and nature of the public recreational access permitted under Subsection
234 (1) is determined by the nature of the historical recreational access during the 10 consecutive
235 years required under Subsection (1).
236 (5) When a public water is a lake, pond, or reservoir located on a natural stream and on
237 private property, any portion that has been developed or protected for private hunting is not
238 subject to public recreational access even though the remainder of the public water qualifies for
239 public recreational access under this section.
240 (6) A right of public recreational access on private property established in accordance
241 with this section, may not be closed without authorization of other law.
242 Section 10. Section 73-29-204 is enacted to read:

243 73-29-204. Quiet title action.
244 (1) (a) A person, including the division, may file a quiet title action in accordance with
245 Title 78B, Chapter 6, Part 13, Quiet Title, to obtain a judicial declaration of the existence of a
246 right to public recreational access under Section 73-29-203 .
247 (b) The division may intervene in a quiet title action filed in accordance with
248 Subsection (1).
249 (c) The division may not be compelled to:
250 (i) file a quiet title action; or
251 (ii) join a quiet title action filed by another person.
252 (2) The claimant in a quiet title action under Subsection (1) shall:
253 (a) name the property owner of record as a party; and
254 (b) notify the division of the suit by certified mail no later than 20 days after the day on
255 which the quiet title action is filed.
256 (3) Within five days after receiving notice in accordance with Subsection (2)(b), the
257 division shall post notice of a quiet title action under this section on its Internet website.
258 (4) A quiet title action under this section shall be commenced within four years after
259 the day on which a period of prescriptive use ceases.
260 (5) The burden of proof for a quiet title action under this section is on the claimant to
261 prove the existence of a right to public recreational access or floating access under Section
262 73-29-203 by clear and convincing evidence.
263 (6) A quiet title action under this section is limited to a declaration concerning the
264 property and property owner joined in the action.
265 (7) (a) Multiple claimants and multiple property owners may be included in a quiet title
266 action concerning public water common to the property owners.
267 (b) In a case with multiple property owners, the court shall make a separate finding
268 concerning each property owner included in the action.
269 (8) A final judgment on the merits that a piece of private property is not subject to
270 public recreational access:
271 (a) is binding; and
272 (b) may not be challenged in subsequent litigation.
273 (9) The court may award attorney fees and costs in an action under this section if the

274 court finds that the losing party's arguments lack a reasonable basis in law or fact.
275 Section 11. Section 73-29-205 is enacted to read:
276 73-29-205. Injunctive relief.
277 (1) The owner of private property may obtain injunctive relief against a person who,
278 without permission, enters, remains, or persists in an effort to enter or remain on the owner's
279 property for recreational use of public water other than use in accordance with Sections
280 73-29-202 and 73-29-203 , when effective.
281 (2) An injunction under this section is in addition to any remedy for trespass.
282 (3) The existence of an easement under Section 73-29-203 is a defense in an action for
283 injunctive relief under this section or a claim of trespass under other law.
284 (4) If a person against whom an injunction is sought, or a person charged with trespass,
285 establishes by clear and convincing evidence the existence of an easement for defense
286 purposes, as described in Subsection (3), the establishment of the existence of the easement
287 applies only to the defense and does not constitute a judicial declaration of the easement's
288 existence for another purpose.
289 (5) If an owner obtains an injunction against a person under this section, the injunction
290 does not serve as a declaration that there is no public easement on the owner's property.
291 (6) The court may award attorney fees and costs in an action under this section if the
292 court finds that the losing party's arguments lack a reasonable basis in law or fact.
293 Section 12. Section 73-29-206 is enacted to read:
294 73-29-206. Effect of chapter on other uses and restrictions -- Required acts.
295 (1) Nothing in this chapter affects the right of the public to use public water for public
296 recreational access, including the touching of the bed beneath the public water if:
297 (a) the bed beneath the public water is public property; or
298 (b) the bed beneath the public water is private property to which access is not
299 restricted.
300 (2) A person using a public water for public recreational access is subject to any other
301 restriction lawfully placed on the use of the public water by a governmental entity with
302 authority to restrict the use of the public water.
303 (3) Nothing in this chapter limits or enlarges any right granted by express easement.
304 (4) When leaving a public access area, a person shall remove any refuse or tangible

305 personal property the person brought into the public access area.
306 Section 13. Section 73-29-207 is enacted to read:
307 73-29-207. Fences across public water.
308 (1) The owner of a public access area adjacent to and lying beneath a public water may
309 place a fence or obstruction across a public water for agricultural, livestock, or other lawful
310 purposes.
311 (2) A fence or other obstruction shall:
312 (a) comply with an applicable federal, state, or local law; and
313 (b) be constructed in a manner that does not create an unreasonably dangerous
314 condition to the public lawfully using the public water.
315 (3) The owner of a public access area shall allow the placement of a ladder, gate, or
316 other facility allowing portage around a fence or obstruction if:
317 (a) the owner places a fence or obstruction across a public water in accordance with
318 Subsection (1); and
319 (b) the water is open to public recreational access by permission or under Section
320 73-29-203 .
321 Section 14. Section 73-29-208 is enacted to read:
322 73-29-208. Severability.
323 If any of this chapter's provisions, or the application of any of this chapter's provisions,
324 is held to be unconstitutional, the provision is severable and this chapter's other provisions and
325 applications remain effective.
326 Section 15. Effective date.
327 If approved by two-thirds of all the members elected to each house, this bill takes effect
328 upon approval by the governor, or the day following the constitutional time limit of Utah
329 Constitution Article VII, Section 8, without the governor's signature, or in the case of a veto,
330 the date of veto override, except that Sections 73-29-203 and 73-29-204 take effect on May 10,
331 2011.