The legalities of floating on Colorado Waters
Ownership of Colorado Water
An important aspect of considering the use to which water can be put is to first identify its ownership.
Article XVI, section 5 of the Colorado Constitution provides,
Given the constitutional mandate that the water of every natural stream is, prior to appropriation, the property of the public and is dedicated to its "use", how is this to be interpreted? In Utah for instance, the Supreme Court has ruled that in the course of utilizing water, the public was entitled to undertake actions which were incidental to using it such as fishing, boating, wading while fishing, portaging around obstacles and generally anything which was incidental to using the water[Conatser v. Johnson Supreme Court of Utah July 18, 2008 2008 WL 2776716 (Utah 2008)].
There were 4 qualifications observed by the Supreme Court which protected the interests of the landowner.
More restrictively, in an earlier decision the Wyoming Supreme Court had determined that the uses to which the water could be put were as an incident of floating [Day v Armstrong 362 P.2d 137 (Wyo. 1961)]. This meant for example, that one could fish from a floating craft but could not alight and wade along the bank. The dominant use was floating and therefore the incidental rights were associated with floating rather than the utilization of the water.
The Montana Supreme court [Montana Coalition for Stream Access v Curran 210 Mont, 38; 682 P. 2d. 163 (1984)] also adopted the "use" test citing Day v Armstrong [ibid] with approval.
The Colorado Supreme Court has determined that the Constitutional provision protects only a person’s right to appropriate water for a beneficial use, ( e.g., for municipal, industrial, or agricultural purposes), and not his or her right to float, fish, or otherwise recreate in non- navigable streams. People v. Emmert, 597 P.2d 1025, 1027 (Colo. 1979) at 1028; Hartman v. Tresise, 84 P. 685, 686 (Colo. 1905).
The decision in Emmert's case was the subject of 2 dissents. Groves J pointed out the absurdity of the restrictive meaning of the term "use" and cited the dissenting opinion of Bailey J in Hartman v Tresise, 36 Colo.146 84 P. 685 (1906). Essentially if the only reason for the vesting of the right to the water in the public is for appropriation and nothing else, it cannot be property prior to appropriation because it is only the act of appropriation which renders it public property. But immediatley on the appropriation it is no longer capable of being the "property of the public" because it has been appropriated by a private individual.
It would therefore appear that the majority interpretation of "use" is questionable. There is nothing in the employment of the word "use" which should limit it to the extent suggested. If it is "'property of the public" there is no requirement to import the suggested restriction upon its use.
Obviously rafter's "use" the water for taking rafting trips down the river in a commercial venture. Similarly fishing guides do the same thing when taking out a client. The public "uses" the river for recreational purposes.
If the majority view is taken as correct, coupled with the suggestion that there are no navigable waters in Colorado, it follows that no-one has the right to enjoy floating in Colorada. How can it be "property of the public" but only able to be "used" at the point of appropriation by a private individual?
A close reading of the Attorney General's opinion of 1983 indicates that the definition of the term "premises" was undertaken with the express object of excluding from criminal trespass, someone who was floating over property without touching the sides. However, if the Emmert decision is that the only "use" to which the public has a right to natural streams is for appropriation, the public has no right to "use" the stream for floating. Yet the various comments of members of the legislature noted in the A-G opinion, contemplate that the public does have the right to float without touching the steambanks or streambed. In that case, what is the public's authority to float upon the water if it does not flow from the constitutionally endowed "property" in the water?
The obvious answer is that the water is the "property of the public" generally and therefore public does have the right to "use" the water for floating and rafting and whatever other incidental uses which flow from ownership independent and prior to appropriation by a private individual. It is an obvious and simple answer and avoids the torture of language inherent in the majority's opinion.
So until the matter is the subject of further litigation it is unclear. But it is the writer's view, that if the matter was revisited, the Court would ultimately give a broader meaning to the term "use" particularly given the extensive economic interests which have evolved in Colorado and which rely upon waterways for their survival.
It should also be noted that the constitutional provisions is limited to "natural streams". How does this then apply to lakes and ponds? It would appear that a lake or pond which occurs in the course of a natural stream would constitute part of that stream. It would be an odd situation if water in a natural stream which flows into a lake immediately loses its character as public water upon entry into the lake. Given that the provision defines the public interest prior to appropriation, it would be necessary for appropriation to occur at the point it flows into the pond in order to lose its character as public water. Therefore it would be a matter of considering the facts of the particular case.
If for instance the water flows into the lake and then out again at the other end and continues in a stream bed, it would be interesting to take the view that the water has been appropriated at the point it flows into the lake, used for recreational purposes by the owner of the lake and then discharged back into the stream to become public property again. In some circumstancve it is possible that this in fact would be the case.
Another matter of interest is whether a "natural stream" can evolve from an artificial waterway. In other words, if a farmer built a substanial channel which in time grew vegetation and became very natural, would that satisfy the definition? In California, it has been held to be the case [Chowchilla Farms v Martin 25 P. 2d 435, 442 (Cal. 1933); see also Natural Soda Products Co v City of Los Angeles, 23 Cal. 2d. 193, 197 (1943)].
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