Rush Lake 2015

[jason morton]

Rush lake has no water this year, as we would all suspect. Worse yet, the landowner has connected the fence line which now runs across the entire lake in the east-west direction. Very sad news to all Utah windriders.

[brian.doubek]

Thanks Jason for the recon.
Here is a map showing the approximate location of:
-The fence (red dash line)
-Yellow shading is BLM land
-Yellow outline are private parcels.

These features are approximate so we don't really know where the fence crosses BLM land without surveying.

[andrewcarey44]

I have contacted the BLM and have corresponded back and forth with a man named Ray Kelsey. Below is the dialog copied from the emails back and forth on Friday, February 6, 2015.

Initial Email from myself to Ray Kelsey (BLM):

I wanted to follow up with you about a safety concern that I have at Rush Lake near Stockton. According to the BLM website, 1/2 of the lake is BLM land and the other half i privately owned. A substantial group of us use this lake for kiteboarding and windsurfing every spring until the water dries up in ~June or July. The timing of the lake drying up is obviously all dependent on snowpack and the amount of water we receive during the winter. A person from our kiteboarding group recently went out to the Rush to check the water level. It is still dry but the private owner has put up a substantial barbwire fence that runs East to West along what I can only assume is his property line. I have attached the pictures of the fence for reference. The main concern I have with this, is that when the water does return to Rush Lake and water recreation continues the fence proposes a great safety risk to those recreating at the lake. I wanted to get your feedback regarding this issue and see if there is any validity to this owner installing the fence and what the permitting process was that he had to go through in order for this to be allowed to occur. Thank you for your assistance with this.

Ray:

Thank you for the heads up on this. I am copying our law enforcement and management on this because I agree that we may have a serious public safety issue here. We will be looking into it on our end but in the meantime, I would suggest you contact the Tooele County Sheriff's Office and possibly the Tooele County Rec Dept. with your concerns. Thanks and we will get back.

Andrew:

I spoke with both the Tooele Parks & Rec department and the Sheriff's department. Parks & Rec. could care less but I got some useful information from the Sheriff's department. Supposedly, there is a wealthy land owner/investor that has purchased a bunch of land in the area to "clean it up" from the mine tailings in the area . His name is Tom Barnes and they have constantly battled this guy for various complaints and concerns in the Stockton area. According to the Sheriff's office, he is very territorial and combative when it comes to this kind of stuff. Ironically, the person I spoke with at the Sheriff's office had a friend a few years ago that died at Rush Lake because their boat capsized and he got tangled up on a submerged fence.

The sheriff's office said they cant/wont do much about it because its "his property" and said that it would have to be a fight between the BLM & the owner (interesting attitude to have when public safety is in jeopardy). Anyway, just thought I would let you know about this information. Let me know what you think and if there is anything we can do. Thank you!

Ray:

Thanks, Andrew. I have forwarded you info on to higher authority. If it is on his property, there may not be much anyone can do. Will let you know. You've probably already done it, but be sure to pass the word around to your kite surfing network and warn everyone. BLM may also need to put up some warning signs. Thanks.

Reply:

Yes, I have informed the community of this issue and will continue to spread the word. FYI, Below are some images that a friend got showing the BLM land shaded in green. The larger image shows the fence as the red dotted line. The triangle of private land in the northwest quadrant of the large image has been the access to the beach area. My hunch is that this guy owns the east side of the lake because there are residences on the west side that own that triangle piece.

(I attached the pics that were provided above in the email to Ray)

Ray:

After reading this and talking with our ranger Camm, we would suggest you also contact the Tooele County Attorney's office and make this known. They may be more interested in doing something than the Sheriff who is brand new in office. Also looking at the pictures, that puts the fence where I suspected it would be. But depending on the accuracy, BLM may have a trespass case here. I'm going to forward another email to you from our LE supervisor about county jurisdiction.

Andrew:

Yes, I am not sure if the dotted line is a simple paint/powerpoint job or actual survey data. My question would then be, once Rush fills with water, is his 'private property' still considered private property? Or is there an easement of some kind that considers the entire lake as public land? I would also be interested to know how accurate those property boundaries are because if they are the majority of the water we use is in that northern shape. I will definitely contact the county attorney and get them up to speed on the situation.

Ray:

The link below covers Utah law related to navigable waterways and sovereign lands. You and the county attorney might find it interesting:

http://www.rules.utah.gov/publicat/code ... 52-070.htm

FYI, our District Manager has already taken an interest in this so we will be pursuing it. Probably start with a survey of the fence line. He has also mentioned warning markers and signs. You did good letting us know. I would really hate for someone else to get hurt out there. Thanks.

Andrew:

Would Rush Lake be considered a navigable waterway?

Ray:

Don't know. You would need a qualified attorney to answer that, probably at Utah DNR

Copied Email between the 'Higher Ups' within the BLM:

All,

I am very surprised at the response and reaction from Tooele County, they do have jurisdiction over public safety matters on private land. We on the other hand have absolutely no jurisdiction. At the very most we can consider posting the BLM near the fence-line advising public land users of the fence and risk and even consider giving the land owner a call and let him know of our concerns and potential signing. The call would have to be a simple advisement or notification call (being good neighbors). I am open to hear any other ideas or suggestions but from a criminal and LE standpoint those would be my concerns.

[andrewcarey44]

I was planning on contacting the Tooele County Attorney's office Monday as well as the DNR to make them aware of the situation. After reading the above dialog, does anyone have any additional ideas on how to handle this?

[brian.doubek]

Yes, I am not sure if the dotted line is a simple paint/powerpoint job or actual survey data. My question would then be, once Rush fills with water, is his 'private property' still considered private property? Or is there an easement of some kind that considers the entire lake as public land? I would also be interested to know how accurate those property boundaries are because if they are the majority of the water we use is in that northern shape. I will definitely contact the county attorney and get them up to speed on the situation.

I drew the dotted line by connecting the fence on either end of the lake, which is visible on the aerial photography. The aerial photography is accurate to about 25 feet.
The parcel boundaries are from Tooele County and the BLM ownership is from the BLM state office, the accuracy of this data is closer to 100 feet. To really know the location of these features we need to survey.

[gregwojtkun]

Sorry Im kind of new to UWA as of last year and I enjoyed Rush last spring so sorry for the naïve comment/question here. Doesn't that fence only pose a risk on North Wind days? It appears it is a couple hundred yards south of the main rig up / area where most set up shop (Im going by the google maps satellite of the cars/kites and guys riding - looks like the fence is couple hundo yards south)?

Just trying to see if we can still ride on the lake (if it ever fills up with water this year or next) with the Fence still being there and the final answer is the fence stays.

-Greg

[andrewcarey44]

I agree that it would be rideable but certainly limits your access. Also, in speaking with the Tooele County Sheriff's department they say the new owner (Tom Barnes) who put up the fence is extremely territorial and will enforce 'trespassing' to the full extent. They have interacted with him extensively even after only about 5 months of ownership. I spoke with the Tooele District Attorney's office yesterday and they were very supportive of us and concerned regarding the fence. They will be looking into it as well. Because the question remains, when Rush does fill up, is the entire Lake considered public and does that fence then need to be removed not only as a safety risk but also a trespass onto public waters? They suggested that we contact the DNR's water rights office. I gave them a ring late yesterday but have yet to hear back.

[andrewcarey44]

Just doing some research into the Water Rights and I came across this link:

http://le.utah.gov/xcode/Title73/Chapte ... 0118000101

This is talking about the recreational use of lakes and water. After reading through these sections its clear that we have every right to kite and windsurf on every square inch of Rush even if 'underneath the water' it is private property. In Section 207 is goes into the details of fences and such. Section 207 Part 1 makes it sound like the fence is legal but then Section 207 Part 2b makes the fence illegal for safety reasons. I'm no attorney, what do you guys understand from this?

[gregwojtkun]

Thanks Andrew - Good research and info.

In looking at the map of parcels provided - Does Mr. Barnes now own the private parcel that has is the triangle shaped part where we normally rig up? Because if not - that and the spot northeast of the "fence" does not seem to be his property as the shaded part (northeast parcel) is stated as public land. Therefore, it seems to me he does not have any trespassing issues. Again, I have no clue on who owns which parcel. Seems like in past years the private owner of that triangle part gave UWA permission to access the rig up spot and the land correct? (per an old thread from Marty regarding Rush access)

Re: Section 207 2b - The debate here I think is if Mr. Barne's fence is "creating an unreasonably dangerous condition" to the public using the public water. I would say that for kiting it most certainly is creating an unreasonably dangerous condition but for boating - I don't see how its a huge risk IF warning signs are posted (per Rays conclusions - BLM would most likely need to put warning signs up). Maybe Mr Barnes knows the statue well in that he has the right to put the fence up but hasn't considered how it can impact the recreational activity of kiting (e.g. dragged into fence, cant release, pins you underwater). Also - the fence seems to totally cut off access to the south part of the public water. Not sure how that plays into it as well.

Regardless - looks like Rush will be a no go this year but good you are tackling this for 2016 and beyond. Thanks for looking into it and getting the DA involved!! Definitely an interesting debate here.

[jason morton]

Thanks Andrew!!! You've done some good work here. Basically we want the fence removed. Maybe not for this year. Maybe not for next. But we will be riding Rush again. This is certain. And it may come back big time to the level that Utah windsurfers will want to use the lake as well. I'm surprised no windsurfers on this forum have responded to this thread. Windsurfing has been happening on this lake since the early 1980's? Maybe late 1970's? I'm sure some windsurfers on this forum have an interest in Rush Lake? How do we get the fence removed? Is the BLM planning on surveying the property lines to determine if the fence has been illegally placed on public lands? We may not be able to park at the old spot anymore. However, there are no "no trespassing" or "private property" signs currently. Marty obtained permission for us to launch from the east shore from the property owner on the east side of the lake. Hunsaker was their name I believe. Might help to have Doug or Vern chime in with their thoughts and if they might know their phone number? The fence prevents us from riding the southern portion of the lake. It has some of the best water conditions I have EVER kited anywhere. And it's incredibly beautiful on that end of the lake. The fence is dangerous and ugly. If we have rights to this waterway as recreational users and if has been determined that the fence has been placed through portions of public land then we may have grounds to get that thing removed. Just having warning signs placed on the fence is not ok.

[Mike Egan]

Any attorneys in the group? You want that fence to come down now. The longer its up the more permanent it becomes. I know a great real estate attorney but he is not cheap. If there is not an attorney in the group who wants to take this on ,which who in their right mind would , I suggest UWA hires an attorney ASAP. Thoughts?

[jason morton]

Brian Kelm is an attorney/windsurfer/kiter(not necessarily in that order ha). I e-mailed him but I think he is off chasing powder currently. I agree Mike that the longer it stays in, the more likely the gov will just blow it off. It is so damn ugly to see that thing running across the lake. It really prevents anyone from being able to ride upwind and enjoy the majesty of Rush lake we have enjoyed all these years.

[Todd Jacques]

this what the UWA does best. we should keep the UWA going for all of us windriders.
good job fellas. My question is parking? without parking we cannot access the water.
I think you guys are right we need keep the traction moving. We will want to ride there again one day.

[gregwojtkun]

So here is a thread from 2008 that appears to be the same issue we are facing now - Someone had put a fence on the exact same line that was spotted recently by Jason/Brian, although the one from 2008 only went 1/2 way across (seems correct as the prop line ends in the middle of the lake - Willow Springs Real Estate Holdings Company was the previous owner of the land - Im assuming Barnes is now the owner of the lot). For those that remember this issue from 2008 - what was the resolution? Looks like the new fence is on the same property line as the one from 2008 - although this time its going all the way across. The thread linked below doesn't seem to conclude on what the final resolution was but appears as tho the fence (or fence posts) were removed as I didn't see them last year at all.

Seems to me the only way this would be legal (if it is at all) would be if Mr. Barnes (assuming its him) now owns the triangle shaped parcel OR he talked to that parcel owner about putting a fence up together.

Do we know who owns the triangle shaped piece of land that we currently use and that Marty negociated with to access (assuming Hunsaker)

viewtopic.php?f=4&t=3578&hilit=blm

[jason morton]

I remember that Marty was concerned that we could potentially lose access and contacted the owner on the east side of the lake who granted us permission to launch from there if need be. We never ended up needing to launch from the east side for reasons unknown to me. That's why I'm hoping that Vern or Doug will respond sooner than later to see if they remember what was going on back then? Anyway, I think that it comes down to two things:
1) Was the fence put on BLM land and if so can the landowner be forced to remove it?
2) Is the fence preventing use of a public waterway and if so, again, can the landowner be forced to remove it?