The legalities of floating on Colorado Waters
Having considered the authorities and the approaches which have been adopted in different states, it is obvious that at some point the law in Colorado will be updated and the rights of floaters on Colorado rivers will be enhanced.
The question is how this will occur.
It might be in the context of litigation by some landowner seeking to bring an action in trespass against a boater who has allegedly committed either a civil trespass or possibly a criminal trespass in the course of floating.
It might be an action against a wade fishermen alleging criminal trespass.
It might be a wade fishermen bringing an action against a landowner seeking a declaration of his right to be able to wade fish a stretch of river.
It might be a rafting company or a floating fly fishing guide seeking a declaration that they have the right to stop on riparian land below the high water mark arguing that the river is navigable under the Commerce Clause.
It might be an action in nuisance brought by a fisherman or rafting company alleging that the structure such as a low bridge or fence is blocking a waterway and preventing the right of passage.
It might be that the Colorado legislature, in response to pressure from either rafters or landowners seeks to either expand or limit the right to float and the matter is challenged either in State or in Federal Court.
There are a number of ways in which the matter will ultimately get before the courts.
These are just a few possibilities. The problem generally is that hard cases make bad law. It would be most unfortunate if the consequence of the case is to throw rivers open to the extent that rivers are open in California. This would be unfortunate for a simple reason. Most Colorado rivers, particularly those which have significant run-off from the mountains, have very high flows during run-off which damage banks and the soils. In many instances the damage is exacerbated by farming practices which allow cattle to graze along the rivers edges and destroy the natural grasses which would otherwise provide some protection to the river banks in high water.
If a decision was made which is expansive as the Californian approach and the rivers are rendered public property, who would maintain the banks and beds of the rivers for future generations? Landowners would not make the investments necessary to maintain the banks beyond protecting their own property and would certainly not make improvements which would protect and enhance the river if they knew that the public would just park there to the high watermark and take advantage of the good work done by the landowners.
On the other hand the current view of the law is just too restrictive. It makes no sense that the rafter can float down a river, but cannot drop anchor, even for a very short period, to re-adjust a load or, in the case of a fisherman, to have lunch or re-rig a rod.
Therefore the desirable outcome would be a position which has minimal impact upon the landowner and leaves him with sufficient interest in the river to continue to maintain it and where he feels inclined to actually enhance it. From the rafter or fisherman’s viewpoint, the ability to stop for a short period, to be able to portage around obstructions without fear of prosecution and the ability to ensure that a remedy is available if a landowner vindictively strings up a strand of barbed wire or places an obstruction in the river is equally important.
Of additional importance to fishermen and rafters is the ability to reasonably access the waterway in the first place. In Montana the recent river access legislation granted boaters reasonable rights to access rivers from next to public bridge abutments while permitting ranchers to adequately secure their property boundaries for the purposes of enclosed their herds.
There is it suggested that a legislative amendment supported by both side of the debate would be the most sensible way to proceed. Ideally the parties would agree on the Day v Armstrong definition of “use” of the public water and put that in legislative form. The parties would then agree on a bridge access amendment similar to the Montana provision and then seek to have that enacted.
The benefit of such an approach would limit the infringement on the property owner’s rights but permit a sensible range of incidents to the full use by the public of the public waters.
A bridge access amendment would codify the publics right to access the water from a public bridge and at the same time define the extent to which a rancher would be entitled to fence his property to the edge of the bridge.
Time will tell if this will occur.
Of late there have been several developments in both Utah and Colorado in relation to the right to use the water of the respective states. You will recall from these notes that the Utah Supreme Court decided in Conatser that the extent of the public easement in the waters of the State contemplated the ability not only to float but to wade and fish on all waters.
In response to this decision, the Utah Legislature has now passed HB141 which has attempted to push back the reach of the Utah Supreme Court. Under the guise of trying to revert to a pre-Conatser position, the Utah Legislature have actually gone further and enacted a constructive denial for the public to access a lot of water they previously considered accessible. This legislation will go back to the Courts and in many respects be declared unconstitutional.
For Colorado purposes and in particular as a warning to landowners to try and be adult in this matter, a careful review of the Conatser decision and the subsequent legislation would be instructive. There is no question that the reach of the Supreme Court decision went too far in balancing the interests of the parties, effectively permitting anyone to access any stream no matter how tiny or lacking in utility for fishing or boating. But that was the decision.
The legislature in attempting to wind back the decision adopted three approaches.
First it recognized the applicability of the Federal definition of navigable waters and recognized the consequence that such waters are public. This was a correct position and sensible in the circumstances.
Second it recognized the right of craft to float on any waters which were appropriate and reasonable relative to the size of a craft. Thus a small canoe could access waters not accessible to a raft. But overall it seems a reasonable approach.
A third approach, and this is where the most significant difficulties arise, was in relation to a public recreational right to fish certain waters. This granted a right generally to the public to access water for recreational purposes. However the mechanism by which such a determination could be made is so capable of manipulation by landowners that it effectively amounts to a constructive denial of the right to access waters which have previously been accessed by the public. It is this third approach which will most likely be declared unconstitutional as it flies in the face of the Supreme Court decision and as it is not a constitutional amendment, will be found to be in conflict with the constitution.
The reason it is instructive for Colorado landowners to review this development is that unless landowners come to a reasonable position shortly in relation to the recognition of the right to float, portage and generally use the waters of the state's natural streams, a court could get involved and give an interpretation similar to Conatser.
With that in mind, lets turn to a current saga unfolding in Colorado. This concerns the efforts of a landowner on the Taylor River to deny rafting companies the right to continue floating and portaging around obstructions created by this person. Shaw is a Texan property developer who is claiming that there is no right to float through his property, nor a right to portage around obstructions which he himself has created in the river proximate to low bridges on his property.
Rafting companies have been rafting through this water for many years and now they face denial of access. As a result of Shaw's actions, the rafters sought a political solution in the form of a Bill HB1188 and sought the right for commercial rafters to be able to portage around obstructions.
The bill was badly drawn and in particular attracted the ire of the public because of its applicability only to commercial rafters. On the other hand it promoted some quite hysterical opposition from landowners who frankly made unseemly and totally irrational claims at a hearing at the Capitol.
The bill passed the lower house and then was amended in the upper house first by expanding its application to the public at large and then was sabotaged by shunting it off to a committee for review by a privately funded industry centric organization.
Effectively the bill has been beaten by the political pressure of the landowners. It is eloquent evidence of the reason the US courts developed the public trust doctrine in the first place as a means of avoiding the obvious corruption of the political process. So for the moment the opponents of HB 1188 have won a pyrrhic victory.
The opponents have demonstrated their machiavellian intent and the rafters have revealed their essential unwillingness to spend the money necessary to take the matter to court. Seeking a political solution was always doomed to failure.
It is possible that the rafters will now seek to get a measure onto the ballot next November. But again, it will be an exercise in futility. The law is clear and any measure which might get onto the ballot will essentially be shunted off to the courts leaving the proponents of the measure having to fight a court case anyway. It seems that their intent is to avoid incurring costs and having the state or someone else fight their battles for them. Furthermore, the public relations aspect of the debate is not interesting generally. A wealthy land-developer and a rafting company in a fight is more a matter of a spectacle than something the average citizen will take much interest in.
The significant issues will get lost in the superficiality of the extreme claims of landowners who claim their land is being taken from them and rafters who claim the right to float on all water in Colorado including a bathtub. However, less visible but equally important is a growing discontent among the public who are aware of these issues and resent the manner in which the public was excluded from the initial bill and resent the attitudes of landowners.
Furthermore, it is evident that a lot of landowners are becoming nervous at the hornets nest being stirred up by Shaw. Boatmen who have not floated the Taylor much in the past are in the process of promising to float it enmasse and often this summer. The activity will probably not be confined to the Shaw property.
One also suspects that in the course of this summer there will be the necessity of this matter being referred to the courts in the event that Shaw does not resile from his position. Consequently, many of the issues discussed in these notes may well be the subject of learned judicial reasoning sooner rather than later. At some point then, the position in Colorado will become clearer in the state courts.
One trusts that the outcome is sensible and reasonable and adequately balances the interests of landowners with the interests of the public. Oftentimes such prayers for reasonableness sink beneath the waves occasioned by the extremes on both sides. Time will tell.