73-29-103 - Declarations.
73-29-103. Declarations.
The Legislature declares:
(1) the Utah Constitution's specific private property protections, including recognition ofthe inalienable right to acquire, possess, and protect property and the prohibition on taking ordamaging private property for public use without just compensation, protect against government'sbroad recognition or grant of a public recreation easement to access or use public water onprivate property;
(2) general constitutional and statutory provisions declaring public ownership of waterand recognizing existing rights of use are insufficient to overcome the specific constitutionalprotections for private property and do not justify inviting widespread unauthorized invasion ofprivate property for recreation purposes where public access has never existed or has not existedfor a sufficient period and under the conditions required to support recognition under thischapter;
(3) whether, or to what extent, a public easement exists for recreational use of publicwaters on private property is uncertain after judicial decisions in the cases of J.J.N.P. Co. v.State, 655 P.2d 1133 (Utah 1982) and Conatser v. Johnson, 194 P.3d 897 (Utah 2008), whichdecisions did not address the constitutional prohibition on taking or damaging private propertywithout just compensation;
(4) legislative failure to provide guidance before, coupled with legislative inaction afterthe 1982 decision in J.J.N.P. Co. v. State form a compelling foundation for the Legislature toaffirm a limited right to float on the water without violating the constitutional protections of theunderlying private property;
(5) the real and substantial invasion of private property rights did not occur withrecognition of the right to float on water that passes over the land, but with the right, firstrecognized in Conatser v. Johnson, to physically occupy the land for an indeterminate time andfor a wide range of activities by the public against the owner's will and without justcompensation;
(6) its intent to foster restoration of the accommodation existing between recreationalusers and private property owners before the decision in Conatser v. Johnson, affirm a floatingright recognized by the court in J.J.N.P. Co. v. State, and recognize adverse use as aconstitutionally sound and manageable basis for establishing a limited right of public recreationalaccess on private property in accordance with this chapter.
Enacted by Chapter 410, 2010 General Session