Conatster v. Johnson Threatens Stream Banks and Property Rights

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On July 18, Kevin Conatser became the poster child for trespassing fishermen everywhere. He earned that reputation when the Utah Supreme Court ruled that public ownership of state waters gave him—and every other Utah resident—the right to stand, wade, and fish on the privately owned stream beds beneath those waters. Touted as a coup for access- minded environmentalists, the ruling erodes private property rights and threatens the health of Utah’s fisheries and streams.

The story begins in June 2000, when the Morgan County sheriff cited Conatser and his wife for criminal trespass. While floating the Weber River, the couple had intentionally left their raft and removed portions of fencing so they could wade and fish along privately owned stream beds and banks. The Morgan County Justice Court found the Conatsers guilty but, on appeal, prosecutors dismissed the charges, citing “uncertainty” as to whether the couple was actually trespassing.

Their uncertainty was well founded.

According to Utah law, the public owns all water in the state “whether above or under the ground . . . subject to all existing rights to the use thereof.”1 But land under non-navigable rivers can be privately owned and taxed just like dry land. For this reason, “private property owners in Utah [sic.] thought their property was, well, private.”2 The Conatsers disagreed and filed a separate civil suit against the Weber River landowners, seeking a declaration that the public’s ownership over the water trumped the landowners’ rights over the land.

Again, the Conatsers lost. The trial court concluded the scope of the public’s easement in state waters was—quite logically—limited to the water and that “wading or walking along the river, where such conduct is not incidental to the right of flotation upon natural waters, would constitute a trespass of private property rights.”

On appeal, the Utah Supreme Court declared the “doctrine of public ownership” gives the public “an easement over the water regardless of who owns the water bed beneath.” This easement, the court concluded, provides “the public the right to float, hunt, fish, and participate in all lawful activities that utilize the water [and] to touch privately owned beds of state waters in ways incidental to all recreational rights.” Thus, the court declared that the public rights over state waters trump the property rights of private landowners along those waters.

While environmentalists and recreationists hail the ruling as a victory for public stream access, Conatser v. Johnson removes the incentives of private landowners to maintain the stream beds and banks along non-navigable waterways by granting the public unlimited recreational access to those resources.

Public access to environmental resources promotes overuse, which reduces environmental quality. Private ownership, on the other hand, promotes good resource stewardship because owners capture the benefits of their investments. This explains why rental companies wash their cars but renters do not.

Even worse, the opinion fails to define the legal boundaries of the public’s new access rights. As recreationists test the limits by traipsing across the yards of riparian property owners, tensions between these two groups will only worsen.

A far better solution would have been to allocate full property rights over the beds, banks, and water to private landowners along non-navigable water ways. If these landowners could charge recreation fees, their economic incentives to manage the resource would match the public’s interest in healthy streams.

Notes: 1 Utah Code Ann. § 73-1-1.
2 Come on in: Public can play on private stream beds, The Salt
Lake Tribune, July 22, 2008.

Reed Watson is the executive director at PERC. He is also the Director of PERC's Enviropreneur Institute, an educational program and launchpad for environmental entrepreneurs. Watson’s research focuses on the implementation of market-based solutions to natural resource conflicts. With Terry Anderson and Brandon Scarborough, he coauthored Tapping...
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