Status of Oak Creek Access

**Iceaxe** · 06-02-2009, 09:28 AM

From Yahoo:

Hello I am one of the owners of the land that needs to be crossed to get to all three of the forks of Oak Creek. In fact to get to any of the forks including the north fork you will need to cross my land, as well as other private lands. This includes going down from the four way spot. I have posted in the past and I am doing so again here. The only way to the Oak creek canyon via my property is through the Zion Adventure Group. I have done this to limit the traffic and the trash left behind by some of the visitors in the past.

In other words to get into Oak canyon via my property other than with the Zion Adventure Group is trespassing. There are sign posted all over this area and more will be placed this year.

Thank you
Jim Bird

.

**Sponsored Link** · 06-02-2009 09:28 AM

**Stick** · 06-02-2009, 09:54 AM

I was hoping to get to eye of the needle this year. Oh well. At least there are a lot of other good canyons to go down.

**nelsonccc** · 06-02-2009, 10:20 AM

Once could argue that the Oak forks that have water year round i.e. "The Eye/South Fork" fall under the new Utah statute regarding stream beds and the water.

From the utah Dept of wildlife resources website "The Utah Supreme Court issued an opinion on July 18, 2008 (Conatser v. Johnson, 2008 UT 48) recognizing that the public has a recreational easement to walk the privately owned bed of state waters while engaging in lawful recreational activities that utilize the water. In doing so, the court reaffirmed its 1982 ruling in J.J.N.P. Co. v. Utah, 655 P.2d 1133 (Utah 1982) that the public has a right to use the surface of state waters for recreational purposes."

Some additional clarification "The easement is limited to "state waters" and allows public recreational access on the surface and bed of natural lakes and natural flowing rivers, streams, and creeks on private land. The easement allows the public to walk on the privately owned bed while engaging in recreational activities that utilize the water."

Regarding the landowners liability "Under the Act, landowners are not liable for injuries or damages sustained to people using a waterway for recreational purposes, unless the injuries are caused by the landowner's deliberate, willful or malicious acts or omissions. Easement users assume the risk of injuries and damages that occur while using the waterway."

Now the state does clarify that access must be gained lawfully "The easement does not allow the public to trespass across private property to gain access to state waters. Access to and from the surface or bed of the water must be obtained at a lawful access point, such as a highway right-of-way, public property, or private property with written landowner permission."

This is the real problem. It would seem that gaining access would be the crux. But you could go to where the road crosses the head of the south fork and hike down from there. that begs the question, is the road public or private? If the road has been there as access to public land for more than 10 years then RS 2477 would apply and a judge could rule that access must remain open to the public. I think there is a fair bit of evidence that the road is public and should not be gated.

Since the exit out of the south fork dumps into BLM land, one could argue that Mr. Bird, in his agreement with ZAC, has essentially established a R657-55. This is when a recreational lease of private lands is established for free public walk-in access, especially if there is money exchanging hands for this agreement. This is normally established for hunting and fishing rights through the Utah Division of Wildlife Resources.

Looking at Google Earth and Topo maps it looks like there might be several locations once could come across the top of the South Fork. If we were to stay in the creek bed then we could walk all the way down to the technical portions.

My thoughts on the matter.

**moab mark** · 06-02-2009, 10:21 AM

Originally Posted by Iceaxe

From Yahoo:

Hello I am one of the owners of the land that needs to be crossed to get to all three of the forks of Oak Creek. In fact to get to any of the forks including the north fork you will need to cross my land, as well as other private lands. This includes going down from the four way spot. I have posted in the past and I am doing so again here. The only way to the Oak creek canyon via my property is through the Zion Adventure Group. I have done this to limit the traffic and the trash left behind by some of the visitors in the past.

In other words to get into Oak canyon via my property other than with the Zion Adventure Group is trespassing. There are sign posted all over this area and more will be placed this year.

Thank you
Jim Bird

.

Is ZAC just guiding it or do they sell permits?

Mark

**Iceaxe** · 06-02-2009, 10:24 AM

ZAC is guiding and not selling permits to the route....

The canyon is still accessible if you really want to add it to your tick list. You just have to go with Zion Adventure Company. So the route is not completely out of bounds. It just has a few hoops to jump through and a price tag attached. I'm as unhappy as anyone that the route is closed to general access, but I am happy that it is not closed completely and you can still visit the canyon if you seriously want to.

Zion Adventure Company
http://www.zionadventures.com

**moab mark** · 06-02-2009, 10:25 AM

If I am reading their site right $395 per person.
No group discount.

Mark

**Iceaxe** · 06-02-2009, 10:34 AM

Originally Posted by nelsonccc

Once could argue that the Oak forks that have water year round i.e. "The Eye/South Fork" fall under the new Utah statute regarding stream beds and the water.

Good argument... but as I recall the year round flow in the south fork begins at a spring in the middle of the property.... but I could be wrong. Its been a long time since I last visited Oak Creek.

**nelsonccc** · 06-02-2009, 10:39 AM

Originally Posted by Iceaxe

Originally Posted by nelsonccc

Once could argue that the Oak forks that have water year round i.e. "The Eye/South Fork" fall under the new Utah statute regarding stream beds and the water.

Good argument... but as I recall the year round flow in the south fork begins at a spring in the middle of the property.... but I could be wrong. Its been a long time since I last visited Oak Creek.

When we went across the road to the north fork last year in the spring and the fall it had water. I always understood that it flowed year round and that the spring is on the north side of the road crossing.

**Iceaxe** · 06-02-2009, 10:47 AM

Originally Posted by moab mark

If I am reading their site right $395 per person.
No group discount.

Last time I checked Oak Creek was classified as a "High Adventure Day" by ZAC

One on One $479.00
Two or More $249.00 per person
Group Discount 8 or more 10%

I couldn't find a direct mention of Oak Creek on their website today.

.

**oldno7** · 06-02-2009, 10:48 AM

Sounds like a court matter. We need a volunteer to get arrested, where did trackrunner go?

**trackrunner** · 06-02-2009, 10:53 AM

Originally Posted by oldno7

Sounds like a court matter. We need a volunteer to get arrested, where did trackrunner go?

still in jail. But I'll volunteer.

Maybe we should charter helicopters to drop us off at BLM land starting at 5 AM in the morning. It's legal, but would you rather have someone walking in your wash or buzy by in the FAA controlled air.

**nelsonccc** · 06-02-2009, 10:53 AM

Originally Posted by oldno7

Sounds like a court matter. We need a volunteer to get arrested, where did trackrunner go?

Not that I'm condoning such actions. But with a little caution its nearly impossible for someone to know if you're in there or not. There are plenty of places to park that are far enough away that the vehicle would not be assocaited with a canyoneer. It merely adds 20-30 minutes of downhill hiking. If one is quiet and sensible, practicing a low-key approach through the neighborhood then I doubt there is any problem. Especially during the week! Just plan on doing this canyon on a thursday when there is nobody up there.

Keep in mind that we tried it the first week of June last year and turned around due to the massive snow drifts we encountered in the other Oak forks. Kolob last year had drifts all the way into July.

**Iceaxe** · 06-02-2009, 10:53 AM

Originally Posted by oldno7

Sounds like a court matter. We need a volunteer to get arrested, where did trackrunner go?

I once had a similar argument with Ranger Ray in regards to Kolob. I mentioned that since the creek was the park boundary if I stayed on the north side of the creek I didn't need a permit. Ranger Ray's response was something to the effect of.... if you try it you will get a ticket and you can argue your side to the judge.

Some how that response always felt like strong arming by the NPS to me....

**ratagonia** · 06-02-2009, 11:04 AM

Originally Posted by Iceaxe

Originally Posted by oldno7

Sounds like a court matter. We need a volunteer to get arrested, where did trackrunner go?

I once had a similar argument with Ranger Ray in regards to Kolob. I mentioned that since the creek was the park boundary if I stayed on the north side of the creek I didn't need a permit. Ranger Ray's response was something to the effect of.... if you try it you will get a ticket and you can argue your side to the judge.

Some how that response always felt like strong arming by the NPS to me....

Or just the truth.

I've made the same argument, but I think convincing the judge would be unlikely.

Tom

**cilantro13** · 06-02-2009, 11:07 AM

I agree in principle, and have argued the same on the Yahoo group. Although the following points have been met with some snarky comments in the past, an analogous fact pattern exists with beaches.

Beaches are public land and anybody is allowed to be on the beach (in essence, there is no such thing as a private beach). A number of cases (sorry I cannot give exact cites, it has been quite a while since I was studying the cases in property law) held that the public has a right of ingress and egress to the beaches via land routes. To solve the problem, most developments provide planned pathways to the beaches so that private property remains private. The public therefore has access and need not trespass on private property to get to the beach (which they would otherwise be justified in doing if the paths didn't exist).

So my question is this: if the public has a right to the waterway, shouldn't the public have a right of ingress and egress to access the waterway? The unique fact pattern with Oak Creek, or any canyon for that matter, is that they are one-way -- i.e., you don't access oak creek from the bottom, it must be from the top. In other words, you cannot access the top of the canyon by coming in through public lands.

Bear in mind, I am not saying there is an affirmative right of access or not, I am just making the point that having a public water way is sort of pointless if you can't access it; in essence the spirit of the statute is violated without a reasonable route of ingress and egress.

As for Mr. Bird, I for one am unwilling to just take his word that you have to cross his land to get the South Fork. In the past, I have always gone through the girl's camp, but as a Mormon, I have always felt a certain justification in that provided there girls camp wasn't full of young women. As for Mr. Bird, what motivation would he have to represent there is no access to Oak Creek except through his land... hmmmm... oh, yeah, the fact he licenses ZAC to cross the land. (BTW - not a knock on ZAC or Mr. Bird - just a lingering distrust of representations without evidence when there is money involved -- call me cynical.)

My family, including my extended family, have had land on Kolob mountain for decades. I know that many of the owners are more than a little crabby about anybody disturbing their tranquility. I get that. But with all due respect to Mr. Bird, I am going to rely on the platte and a title rather than his word. I will be the first in line to apologize to him if it turns out that he is correct in asserting that S. Fork cannot be accessed without being on his land. So let's see that title and platte. He could solve himself a lot of problems by providing it in this forum.

Moreover, if the county is grading and maintaining the roads, I would be very surprised that there is not an easement for public access which might be a way to get into the waterway via the intersection of waterway and road. That too would also be interesting to look into at the Washington County recorders office. Even if a gate goes up and no trespassing signs are affixed, you can't transform the rights granted granted via an public easement with a sign.

Another last theory is that of prescriptive easement (i.e., an easement that is granted by continual illegal use -- yes, you can get legal rights in land via illegal occupation/use of the land if certain criteria are met). If anybody deals in Utah property law, I would be interested in hearing them weigh in. Unfortunately, that isn't my area. But I will bet that canyoneers have been accessing at least S. Fork for the requisite time to form a prescriptive easement, unless access actually does cross Mr. Bird's land, in which case his enforcement actions on his property would most likely prevent a prescriptive easement.

Rant over. (Again.)

**ratagonia** · 06-02-2009, 11:07 AM

Nice arguing, but incorrect on several points.

--- In Bogley, , "Christian" <nelsonccc@...> wrote:
>
> One could argue that the Oak forks that have water year round i.e.
> "The Eye/South Fork" fall under the new Utah statute regarding
> stream beds and the water.
>
> From the utah Dept of wildlife resources website "The Utah Supreme
> Court issued an opinion on July 18, 2008 (Conatser v. Johnson, 2008
> UT 48) recognizing that the public has a recreational easement to
> walk the privately owned bed of state waters while engaging in
> lawful recreational activities that utilize the water. In doing so,
> the court reaffirmed its 1982 ruling in J.J.N.P. Co. v. Utah, 655
> P.2d 1133 (Utah 1982) that the public has a right to use the surface
> of state waters for recreational purposes."
>
>
> Now the state does clarify that access must be gained lawfully "The
> easement does not allow the public to trespass across private
> property to gain access to state waters. Access to and from the
> surface or bed of the water must be obtained at a lawful access
> point, such as a highway right-of-way, public property, or private
> property with written landowner permission."

1. you would be required to transit the canyon without touching anything that is outside the streambed. This would be quite challenging.
>
> This is the real problem. It would seem that gaining access would be
> the crux. But you could go to where the road crosses the head of the
> south fork and hike down from there. that begs the question, is the
> road public or private? If the road has been there as access to
> public land for more than 10 years then RS 2477 would apply and a
> judge could rule that access must remain open to the public. I think
> there is a fair bit of evidence that the road is public and should
> not be gated.

2. RS2477 does not apply here unless the road was created before 1976 across Federal land, and other complications. I have checked with Washington County and the BLM, and they do not have a clear claim on the road, or an interest in pursuing one.. EVEN if there WAS a valid RS2477 claim, it is not an ownership claim and ONLY a right-of-way claim, and the COUNTY would need to assert that claim, not individuals. The county has de facto given up a claim, if it had one in the first place.

It would also require that when the road was built it was on Federal land. I
know not the history of these plots, but I suspect they have not been Federal land for quite some time.

The road is currently gated. It is up to the County to object to the gating of the road. The landowners have been maintaining the road for quite some time, and have signed it as a private road for quite some time.
>
> Since the exit out of the south fork dumps into BLM land, one could
> argue that Mr. Bird, in his agreement with ZAC, has essentially
> established a R657-55. This is when a recreational lease of private
> lands is established for free public walk-in access, especially if
> there is money exchanging hands for this agreement. This is normally
> established for hunting and fishing rights through the Utah Division
> of Wildlife Resources.

3. I am unfamiliar with R657-55, but the agreement between Mr. Bird and ZAC is not for public access - it is a private commercial agreement between two entities. You are welcome to attempt to negotiate a public access agreement with Mr. Bird, Christian.

>
> Looking at Google Earth and Topo maps it looks like there might be
> several locations once could come across the top of the South Fork.
> If we were to stay in the creek bed then we could walk all the way
> down to the technical portions.

4. Possible, but that presumes you can get through Mr. Bird's property without touching anything outside the stream bed. Unlikely. Without GPSing it carefully I cannot say for sure, but my reading of the map is that Mr. Bird's plot 146749 includes the first 5 rappels or so.

Tom

**James_B_Wads2000** · 06-02-2009, 01:00 PM

It is wrong to block access to public land. I know that the approach crosses private land put at some point you enter BLM or national park land. The same thing happen in Bells Canyon in SLC. Ownership of a couple of acres can not trump the public

**ratagonia** · 06-02-2009, 02:49 PM

[quote=James_B_Wads2000]It is wrong to block access to public land. I know that the approach crosses private land put at some point you enter BLM or national park land. The same thing happen in Bells Canyon in SLC. Ownership of a couple of acres can not trump the public

**cilantro13** · 06-02-2009, 03:18 PM

Originally Posted by ratagonia

If the private land next to public land has to allow public access, how about the private land next to that? and next to that? And how about access via quad? or via hummer? How about the hummer through my living room???

Tom

Tom, you're starting to sound like a law school professor... javascript:emoticon('

')

How about this one... a parcel of square land is subdivided into nine equal portions (think tic tac toe grid). A man and his brother buy the center square and one of the outer squares, where the man with the middle square accesses his land via the outer square his brother owns. His brother falls on hard times and loses the outer square to Mr. Bird. Mr. Bird doesn't want the man driving his truck, ATV, etc. over his parcel of land because he wants to let the land revert to nature, so he gates it off and puts a no trespassing sign up. No access easement was ever granted. (In real life, there is an implied easement, but for the sake of this fact pattern, ignore that).

Should the man have access to the middle square? Assume Mr. Bird owns all the outer squares. Or, assume that the man's square is surrounded on all sides by cliffs that are impassible with a vehicle making the only avenue of ingress and egress through Mr. Bird's land.

As I see this problem, the facts are similar. You have a natural feature of the environment that is inaccessible but for access on a narrow passage of land. Moreover, the canyon is public land. Even if not public, a statute has declared that the land is to be accessible as long as you remain in a river bed (arguably the entire canyon floor qualifies for narrow canyons). So really, the only issue is whether there is an implied easement to access the land over Mr. Birds land.

Keep in mind, the whole point of property rights are to make productive use of the land.

Just throwing out food for thought. I don't know the answer, and I go back and forth with this issue, but at the end of the day letting one person dictate access to public lands doesn't sit well from policy perspective with me. In effect, Mr. Bird is appropriating for himself the entire canyon by denying access to it because you can't get to it from the bottom unless you have a REALLY big grappling hook.

As for reality, well, I think it is much less clear. I find this to be a fascinating topic just because I can see valid arguments on both sides of this coin.

**ratagonia** · 06-02-2009, 03:19 PM