Frying Pan Anglers – a full service fly fishing shop and outfitter based in Basalt Colorado which provides guided fly fishing trips on the frying pan river, roaring fork river, Colorado river  and other rivers in the Basalt area.  Frying Pan Anglers carries fly fishing equipment, with Hardy fly fishing equipment, and fly fishing supplies. It provides regular fishing reports and fly fishing reports for the frying pan river, the roaring fork river and Colorado river in our area.  Frying Pan Anglers is the premier fly fishing and guided fly fishing outfitter for the best quality guides and fly fishing equipment.  Frying Pan Anglers provides a range of fly fishing equipment including orvis, hardy, greys, lamson, ross, galvan, and bauer fly fishing reels.  In addition it carries orvis helios fly rods, hardy, greys, GL Loomis, mystic echo and St Croix fly rods. It is your one stop fly fishing shop and fly fishing outfitter in the frying pan river area for guided float and wade fishing trips and tours. It hosts excellent fly fishing guides and fly fishing tours on the frying pan river and other local waters.  The guides will provide excellent teaching and coaching for clients of Frying Pan Anglers.Frying Pan Anglers – a full service fly fishing shop and outfitter based in Basalt Colorado which provides guided fly fishing trips on the frying pan river, roaring fork river, Colorado river  and other rivers in the Basalt area.  Frying Pan Anglers carries fly fishing equipment, with Hardy fly fishing equipment, and fly fishing supplies. It provides regular fishing reports and fly fishing reports for the frying pan river, the roaring fork river and Colorado river in our area.  Frying Pan Anglers is the premier fly fishing and guided fly fishing outfitter for the best quality guides and fly fishing equipment.  Frying Pan Anglers provides a range of fly fishing equipment including orvis, hardy, greys, lamson, ross, galvan, and bauer fly fishing reels.  In addition it carries orvis helios fly rods, hardy, greys, GL Loomis, mystic echo and St Croix fly rods. It is your one stop fly fishing shop and fly fishing outfitter in the frying pan river area for guided float and wade fishing trips and tours. It hosts excellent fly fishing guides and fly fishing tours on the frying pan river and other local waters.  The guides will provide excellent teaching and coaching for clients of Frying Pan Anglers.


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The legalities of floating on Colorado Waters

Navigable Waters


General Comments.

In simple terms, the determination of navigability for the purposes of the commerce clause of the Constitution is a means of determining the extent of Federal power as well as public or private ownership of the land of a river to the high-water mark. However it will not finally determine the issue where a state chooses to adopt its own definition of navigability or where a state simply makes a determination as to how water which is publicly owned may be used.

The Federal power requires a nexus to interstate and foreign commerce. States are able to exercise concurrent power within their boundaries. But regardless of whether the state or a riparian owner holds title, the Federal power over navigable waters is paramount over the streambed to the ordinary high water mark. So that the Federal Government is empowered to build a dam in the Colorado for the purpose of improving navigation [Arizona v California, 283 U.S. 423, 451-452 (1931)] regardless of state police powers. It can exercise power to create a commission, appropriate funds and build levees and improve a river from its paramount authority to improve the navigability of a waterway [Cubbins v Mississippi River Comission, 241 U.S. 351, 369 (1916)].

The dominant power of the Federal Government through the commerce clause therefore can be asserted to the exclusion of all other conflicting powers [United States v. Twin City Power Co. , 350 U.S. 222, 76 S.Ct. 259, 100 L.Ed. 240 (1956)]

 

"The interest of the United States in the flow of a navigable stream originates in the commerce clause. That Clause speaks in terms of power, not of property. But the power is a dominant one which can be asserted to the exclusion of any competing or conflicting one. The power is a privilege which we have called 'a dominant servitude' or 'a superior navigation easement.' " Ibid., at 224-225, 76 S.Ct., at 261.

The whole point of the characterization of navigable servitude as a power is that it renders it the paramount power under the Commerce clause and therefore limits the ability of a state to enact a competing or conflicting law.

Furthermore, this paramount authority extends to non-navigable parts of a river where the exercise of power is necessary to protect the navigable parts of a river [Oklahoma v Guy F Atkinson Co., 313 U.S. 508, 526 (1941)]. However, if the Federal government does not, for some reason, exercise its authority over a navigable waterway, a state is empowered to exercise such control over its internal commerce [Coyle v Oklahoma, 221 U.S. 559, 573 (1911)]. Accordingly the exercise of state sovereignty over its internal navigable waters is subject to the paramount supervisory Federal authority [United States v Appalachian Electric Power Co., 311 U.S. 377, 405 (1940)].

In Colorado, neither the Courts nor the Legislature have attempted to lay down a definition of "navigability". There are 2 cases where it has been suggested that in dicta observations were made that there are no navigable waters in Colorado [In Re German Ditch & Reservoir Co., 139 P. 2, 9 (Colo. 1913) (en banc); Stockman v. Leddy, 129 P. 220, 222 (Colo. 1912), overruled on other grounds, Denver Ass’n for Retarded Children, Inc. v. School Dist. No. 1 in City and County of Denver, 535 P.2d 200 (Colo. 1975)]. In fact in Stockman v. Leddy [ibid] the court simply made the comment that "(t)he federal government, by its lawmaking and executive bodies, knew that the natural streams of this state are, in fact, non-navigable within its territorial limit s."[ibid].

In the German Ditch case [supra] the statement was made that "... The natural streams of the state are non-navigable within its limits and practically all of them have their sources within its boundaries." [ibid]. Again it is dicta and is more of a throwaway comment than having any substantive value in the decision itself.

One explanation for these views is that at the time there may have been no interstate or foreign commerce in evidence hence the willingness of the courts to make these throwaway comments. However given the developments in the law over the last 100 years, the fact that now it is pertinent to look at future developments [United States v Appalachian Electric Power Co., 311 U.S. 377, 405 (1940)] and the more recent development of rafting and float fishing as substantial industries, if the question was revisited this view would be reversed.

Therefore it would be a real stretch to ascribe any weight whatever to either of these decisions on the question of the existence or not of navigable waters in Colorado. In fact the Colorado river has been declared navigable in several cases in other states [e.g. Arizona v California 283 U.S. 423,452-456 (1931) where the Supreme Court declared the Colorado to be a navigable water of the United States; see also Arizona v California 298 U.S. 558, 569 (1936)].

So in the absence of any state guidance, reference should be made to the Federal jurisdiction. It is a serious matter, because determining the navigability of a stream is essentially a matter of deciding if it is public or private property [State v. Korrer, 127 Minn. 60, 148 N.W. 617, sup op 127 Minn. 77, 148 N.W. 1095 (1914) ].

Federal Position.

The commerce clause.

The Federal power over navigable waters is a constitutional doctrine which is an extension of the commerce clause Article 1, Section 8 of the Constitution [Article I, Section 8, Clause 3:

 

[The Congress shall have power] To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;


The right which enables regulation of waterways is referred to as the doctrine of navigable servitude. This doctrine gives the Federal Government a property right over navigable waters of the United States to exercise its power under the commerce clause pursuant to that servitude. The reference to a "servitude" is a reference to the encumbrance which burdens a property interest [the servient estate] for the benefit of another. In this case, the bed of the navigable water to the high-water mark is burdened by the servitude which benefits the public via the Federal Government. It is to be contrasted with an easement which benefits a dominant estate.

It also protects the Federal government against claims by citizens under the takings clause [5th Amendment] of the constitution. If a river or waterway is found to be navigable for these purposes, the riparian owner cannot seek compensation for a taking [Wilson v Black-Bird Creek March Co., 27 U.S 245,252 n.1 (1829)]. So for example, if as a result of a change in circumstances such as the raising of a level of a dam, land is covered so that it become part of a navigable waterway, the owner of the land is unable to claim compensation [e.g.Thompson v. Parker, 132 Ark. 316, 200 S.W. 1014 (1917); Arkansas River Rights Committee v. Echubby Lake Hunting Club, 83 Ark. App. 276 (adverse possession)];

The Supreme Court in 1824 had held that the power to regulate commerce necessarily includes power over navigation [Gibbons v. Ogden, 9 Wheat. 1, 189, 6 L.Ed. 23 (1824) - concerning the licensing of vessels and in the Supreme Court determined that the navigation of vessels in and out of the ports of the nation is a form of interstate commerce].

In Gilman v. Philadelphia, 3 Wall. 713, 724-725, 18 L. Ed. 96 (1866) the court indicated:

 

"Commerce includes navigation. The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a State other than those in which they lie. For this purpose they are the public property of the nation, and subject to all the requisite legislation by Congress."

The determination of navigability of particular waters is ultimately subject to the paramount Federal power over interstate and foreign commerce and therefore is a Federal question [United States v Chandler-Dunbar Water Power Co., 229 U.S. 53, 62 (1913); Ashwander v Tennessee Valley Authority, 297 U.S. 288, 328 (1936), United States v Appalachian Electric Power Co., 311 U.S. 377 (1940)]. This is the case even though the ownership of title of the land under the navigable waters vests in the states. The states ownership does empower them to exercise considerable authority over those waters. But the exercise of state power must never conflict with Federal law. This is the case even where there is no interstate or foreign commerce [United States v Utah, 283 U.S. 64, 75, 82-83 (1931).] In that case, the waters in question were found to be navigable waters of Utah rather than the United States.

Thus navigable waters of the United States are those which are usable in interstate and foreign commerce and trade [United States v Appalachian Electric Power Co., 311 U.S. 377, 405 (1940)].

Federal definition of "navigability"

The definition of "navigability" has evolved over time from the initial English doctrine limiting it to tidal waters, seashores, estuaries and rivers. In addition the range of considerations to take into account has evolved as time has passed.

The essence of the determination of "navigability" necessitates an inquiry whether a waterway can be used for commerce or transportation. The definition has evolved significantly but more in relation to the character of the waterway than just on the question of transportation and commerce, simply because "commerce" in particular is not a static concept.

The English definition of navigability was tide dependent because most significant waterways were proximate to the sea and therefore affected by the tides. However after adoption in the US the concept was extended to inland waters which were non-tidal because of the quite different topography of the United States. In a dissenting view in the Kaiser Aetna case [Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332] Justice Blackmun, writing for the minority, described it thus:

 

"The Propeller Genesee Chief [The Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 457, 13 L.Ed. 1058 (1852) ] and The Daniel Ball [The Daniel Ball, 10 Wall. 557, 563, 19 L.Ed. 999 (1871)] were concerned with extending federal power to accommodate the stark realities of fresh-water commerce. In the former the question was whether admiralty jurisdiction included the Great Lakes. In the latter the question was the scope of federal regulatory power over navigation on a river. In either case it is not surprising that the Court, contemplating the substantial interstate fresh-water commerce on our lakes and rivers, found a test developed in England, an island nation with no analogue to our rivers and lakes, unacceptable as a test for the extent of federal power over these inland waterways. Cf. The Propeller Genesee Chief v. Fitzhugh, 12 How., at 454-457."

However the definition is not relevant solely for determining jurisdiction for interstate and foreign trade and commerce. As will be seen shortly, "navigability" is also relevant for Federal purposes, inter alia, in determining the jurisdiction of the Corps of Engineers under the Clean Water Act, to establish the limits of federal admiralty jurisdiction, in determining Workers Compensation applicability under the Longshore and Harbor Workers' Compensation Act of 1988 (33 U.S.C.A. §§ 901–950) and to define the boundaries of navigational servitude [Kaiser Aetna v. United States, 444 U.S. 164, 171, 100 S.Ct. 383, 388, 62 L.Ed.2d 332 (1979)].

In addition in the course of developing the extent of Federal power it has been suggested that where there was a doubt as to the existence of constitutional authority, reliance was placed on the commerce clause [United States v Gerlach Live Stock co., 339 U.S. 725,738, (1950)]. So for example, Federal jurisdiction has been interpreted to include tributaries to navigable waters and non-navigable portions of a river in order to preserve or promote commerce on the navigable portions [Oklahoma v Texas 258 U.S. 574, 591 (1922); and United States v Rio Grande Dam & Irrigation Co., 174 U.S. 690,703 (1899) where the the US Supreme Court addressed the issue of the diversion of the Rio Grande in New Mexico at a point where the river was not navigable; also Cal. Or. Power Co v Beaver Portland Cement Co., 295 U.S. 142, 159-60 (1935)].

In the United States v Rio Grande Dam & Irrigation (ibid) the logic of the Supreme Court was that a state, without Federal authority, could not destroy the rights of the United States. Thjis is what would have happened if the tributary could have been diverted. In addition, given the paramount authority of the United States over navigation, the Federal Government was empowered to take all "needed measures to perserve the navigability of the navigable water courses of the country, even against any state action" (ibid @703).

In addition the fact that commerce has ceased over portions of a river does not diminish Congressional power over it [see also United States v Rio Grande Dam & Irr. Co. 174 U.S. 690, 703, 704-708 (1899); United States v Appalachian Electric Power Co., 311 U.S. 377, 408 (1940)].

Therefore the commerce power has been interpreted as permitting the exercise of Federal power where navigability was a subsidiary issue so that the power extended to flood control, watershed development, and the sale of generated hydro power [United States v Appalachian Electric Power Co., 311 U.S. 377, 408 (1940); Oklahoma v Guy F Atkinson Co., 313 U.S. 508, 525-526 (1941)].

Because of the various applications of the definition there is no consistent over-arching view. Consequently, a waterway which is not "navigable" for the purposes of the interstate and foreign commerce might be navigable for the purposes of 33 CFR 329 [the definition adopted by the Corps of Engineers][see comment of the majority in Rapanos v. United States, 126 S.Ct. 2208 (2006)].

In addition, water which is not navigable under the "ebb and flow" approach might necessarily still be capable of being floated by the public in craft such as rafts and kayaks and still be "navigable" [See for example Loving v. Alexander, 548 F.Supp. 1079 (W.D.Va. 1982) where logs which had been floated intermittently for a short period of time in shallow water was sufficient to characterize the river as navigable for modern day canoeists, aff'd, 745 F.2d 861 (4th Cir. 1984)].

In admiralty cases there have been a number of incidents where accidents on lakes and rivers have occurred and an attempt has been made to invoke Federal jurisdiction in order to make a tortious claim. In such instances, the waterways have been found to be non-navigable because of the absence of commercial shipping, even though they are obviously navigable for the purposes of the Corps of Engineers jurisdiction [e.g. Adams v. Montana Power Company 528 F.2d 437].

In support of this multi-faceted approach, the Supreme Court has held that the extension of the judicial power of the United States to 'all cases of admiralty and maritime Jurisdiction,' Const. Art. III, § 2, cl. 1, was independent of the commerce clause [In re Garnett, 141 U.S. 1, 11 S.Ct. 840, 35 L.Ed. 631 (1891); Providence & New York Steamship Co. v. Hill Mfg. Co., 109 U.S. 578, 3 S.Ct. 379, 617, 27 L.Ed. 1038 (1883)].

The approach the courts have adopted is to undertake a functional analysis of "navigability," so that the limits of governmental authority are determined in accordance with the purposes it serves. There is a desire to maximize jurisdiction in cases of clean water. There is a desire to limit jurisdiction in tortious claims where there is an attempt to being a case which ought not to have any relevance at a Federal level under the Federal admiralty jurisdiction. Consequently in controlling a river, the courts has taken the view that once navigable it remains navigable despite obstructions such as dams. However in admiralty cases, where the overarching object is uniform regulation of maritime shipping, where shipping activity has ceased, navigability for that purpose is lost if no other commercial activity persists [Executive Jet Aviation v. City of Cleveland, 409 U.S. 249, 269-70, 93 S.Ct. 493, 504-05, 34 L.Ed.2d 454 (1972), at 261, 93 S.Ct. at 501; Jane O. Livingston v. United States of America, United States Court of Appeals, Eighth Circuit. - 627 F.2d 165 ].

Furthermore as shall shortly be considered, the initial definition of "navigability" adopted in The Daniel Ball 77 U.S. (10 Wall.) 557 (1871) which considered the question in relation to waterways "in their natural state" has been extended to contemplate the question if certain improvements are undertaken to make the river navigable [United States v Appalachian Electric Power Co., 311 U.S. 377, 405 (1940)].

It is interesting to note the fate of the definition adopted by the Corps of Engineers in defining its jurisdiction under the Clean Water Act. The Corps, as is the wont of most bureaucratic organizations, has sought to extend its reach by extending its definition of "navigable waters". However the attempted extension of the definition by the Corps has been challenged successfully on a number of occasions. In Rapanos v. United States , 126 S.Ct. 2208 (2006) the Supreme Court held that the earlier definition of navigable waters adopted in United States v. Eidson, 108 F.3d 1336 (11th Cir. 1997) was no longer good law. However the Supreme Court did not adopt a majority view as to the correct definition leaving a number of alternatives open to adoption. Consequently in the absence of a majority view, the lower courts are bound to follow the narrowest opinion [ ].

Earlier the 2002 SPCC amendments stretched the definition of "navigable waters" almost beyond recognition - defining it as "waters of the United States" including all waters subject to the ebb and flow of tides; prairie potholes; mudflats; impoundments of waters; and waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the CWA. This broad definition was challenged by the petroleum industry and vacated in March 2008 by the U.S. Court of Appeals for the DC Circuit. [American Petroleum Institute (API) v. Johnson, 541 F. Supp. 2d 165, 173 (D.D.C. 2008)].

As a consequence the EPA restored its original 1973 definition of "navigable waters" as follows-

1. All navigable waters of the United States, as defined in judicial decisions before passage of the 1972 Amendments to the CWA and tributaries of such waters,

2. Interstate waters,

3. Intrastate lakes, rivers, and streams that are utilized by interstate travelers for recreation or other purposes, and

4. Intrastate lakes, rivers, and streams from which fish or shellfish are taken and sold in interstate commerce.

Under the third paragraph of the definition it is obvious that most rivers and streams in Colorado which are fished by interstate travelers would constitute navigable waters for Federal purposes. If that was the operative approach, the entire issue would now be resolved.

But of course it is not. As we have noted above, the Supreme Court has recognized that the definition of navigable waters used in one context does not necessarily apply in another [Kaiser Aetna v. United States, 444 U.S. 164, 170-72 (1979)].

"navigable waters" for the purposes of the commerce clause

So recognizing the different contexts in which the term "navigability" has been used, we concentrate now on the nexus to interstate and foreign commerce and transportation.

For a starting point, in The Daniel Ball 77 U.S. (10 Wall.) 557 (1871) waters are navigable:

 

"when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water" [ibid @ 563]

As noted earlier, in The Daniel Ball case (ibid), the court extended the application of the doctrine to inland rivers and waterways, unaffected by tides in recognition of the topographical differences between the geography of England and that of the United States. It should be noted though, that The Daniel Ball case (ibid), considered the question by reference to the "ordinary condition" of the river.

Lakes and rivers are generally considered capable of being navigable waters [U.S. v Oregon 295 US 1, 1934; Utah v US 403, US 9 1971], but smaller bodies of water may also be navigable. In Kaiser Aetna v. United States, 444 U.S. 164, 100 S. Ct. 383, 62 L. Ed. 2d 332, the minority opinion indicated:

 

"The Court concedes that precedent does not disclose a single criterion for identifying "navigable waters." I read our prior cases to establish three distinct tests: "navigability in fact," "navigable capacity," and "ebb and flow" of the tide. Navigability in fact has been used as a test for the scope of the dominant federal interest in navigation since The Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 457, 13 L.Ed. 1058 (1852), and The Daniel Ball, 10 Wall. 557, 563, 19 L.Ed. 999 (1871). The test of navigable capacity is of more recent origin; it hails from United States v. Appalachian Power Co., 311 U.S. 377, 407-408, 61 S.Ct. 291, 299-300, 85 L.Ed. 243 (1940), where it was used to support assertion of the federal navigational interest over a river non-navigable in its natural state but capable of being rendered fit for navigation by "reasonable improvements." Ebb and flow is the oldest test of the three. It was inherited from England, where under common law it was used to define ownership of navigable waters by the Crown. In the early days of the Republic, it was regarded as the exclusive test of federal jurisdiction over the waterways of this country. See The Thomas Jefferson, 10 Wheat. 428, 429, 6 L.Ed. 358 (1825); Waring v. Clarke, 5 How. 441, 463-464, 12 L.Ed. 226 (1847)."

Consequently for our purposes, the position is essentially that "navigable water" subject to federal jurisdiction was defined as including waters that are navigable in fact [The Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 13 L.Ed. 1058 (1852). See also, e. g., The Belfast, 7 Wall. 624, 19 L.Ed. 266 (1869)]. And in Ex parte Boyer,109 U.S. 629, 3 S.Ct. 434, 27 L.Ed. 1056 (1884), the Supreme Court held that such jurisdiction extended to artificial bodies of water.

 

“Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States within the meaning of the acts of Congress in contradistinction from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.” The Daniel Ball, 77 U.S. 557, 563 (1870)."

That rule was later expanded in The Montello, 87 U.S. 430, 441 (1874).

 

“The true test of the navigability of a stream does not depend on the mode by which commerce is, or may be, conducted, nor the difficulties attending navigation......The capability of use by the public for purposes of transportation and commerce affords the true criterion of the navigability of a river, rather than the extent and manner of that use. If it be capable in its natural state of being used for purposes of commerce, no matter in what mode the commerce may be conducted, it is navigable in fact, and becomes in law a public river or highway.” Id. at 441-42.

 

There is a prospective element in this definition [see comments of the Special Master in US v Utah 283 US 63, 1930 in relation to prospective navigation for Utah rivers for commercial tourism].

In Jones v Johnson [6 Tex, Civ App. 262, , 25 S.W. 650] the Texas Court of Civil Appeals held that in determining navigability, evidence should not be confined to present or past uses of the water as a highway of commerce. It was appropriate to consider future development in determining the capacity of the water to sustain commerce.[ibid @ 265-266]. Similarly in the United States v Utah, [283 U.S. 64, 76 – 87 (1931)] the US Supreme Court indicated that susceptibility to commerce was the crucial question rather than merely the extent of existing commerce.

Then in United States v Appalachian Electric Power Co 311 U.S. 377, 61 S.Ct 291, 85 L. Ed. 243 (1940) the court noted the relevance of the suitability for future use with reasonable improvements. This case was determining the extent of Federal power and in doing so indicated that

 

"The power of Congress over commerce is not to hampered because of the necessity for reasonable improvements to make an interstate waterway available for traffic." [311, U.,S 377,408 (1940)]

And further the court indicated that:

 

"Although navigability to fix ownership of the river bed or riparian rights is determined . . . as of . . . the admission to statehood . . . navigability, for the purpose of the regulation of commerce, may later arise." [ibid]

 

Consequently from the initial Daniel Ball decision (supra) considering the present "natural state" of the waterway, by the time the court arrived at the United States v Appalachian Electric Power Co 311 U.S. 377, 61 S.Ct 291, 85 L. Ed. 243 (1940) decision, the considerations had expanded to include future use taking into account reasonable improvements.

Although the court broadened the definition in The Montello (supra), it did place limits on the breadth of that holding, stating:

 

“[i]t is not, however, . . . ‘every small creek in which a fishing skiff or gunning canoe can be made to float at high water which is deemed navigable, but, in order to give it the character of a navigable stream, it must be generally and commonly useful to some purpose of trade or agriculture.’” (supra, at 442).

Furthermore, the Supreme Court has specifically held that, for the purposes of defining Congress's power to regulate under the commerce clause, an otherwise navigable river cannot be rendered non-navigable by the construction of artificial dams. [e.g., Economy Light & Power Co. v. United States, 256 U.S. 113, 123 (1921)].

However, there is a necessary nexus between commerce and the water which does require a good deal of consideration. Comments have been made in the past to the effect that recreational float fishing is not commerce [George v. Beavark, Inc., 402 F.2d 977 (8th Cir. 1968) - where only non-commercial fisherman, water skiers, and pleasure boaters made use of the river].

In Colorado in Emmerts case [People v. Emmert, 597 P.2d 1025, 1027 (Colo. 1979)] the court relied on Harrison v. Fite, 148 F. 781 (8th Cir. 1906), when the court stated at page 783:

 

"To meet the test of navigability as understood in the American law a water course should be susceptible of use for purposes of commerce or possess a capacity for valuable floatage in the transportation to market of the products of the country through which it runs."[ Harrison was cited with approval in our later case of Gratz v. McKee, 270 F. 713, 716 (8th Cir. 1920), aff'd 260 U.S. 127, 43 S.Ct. 16, 67 L.Ed. 167; 23 A.L.R. 1393].

Considering the nature of rafting or float fishing as a commercial enterprise, will that be sufficient to satisfy the commerce requirements for navigability? As noted above, George v. Beavark, Inc.(supra) considered that recreational activities were insufficient in the State of Arkansas in the context of that case. However that case was a decision in the admiralty jurisdiction, not in relation to commerce. Given the more recent Arkansas decision in State v McIlroy (268 Ark 277, 1980) and the fact that a request to the Supreme Court was denied from that decision it must be concluded that George v. Beavark, Inc.(supra) is confined to its own facts in the admiralty jurisdiction.

There are other examples where on policy grounds a waterway was not found navigable for admiralty purposes even though the same waterway would be navigable for CWA or possible commercial purposes [Adams v Montana Power Co (528 F. 2d 437, 1975) where the 9th Circuit Court of Appeals found that "neither non-commercial fishing nor pleasure boating nor water skiing constitutes commerce."]

In US v Utah 283 US 63 (1930 ) it was determined that "commerce" included the carriage of people for hire as well as goods.

In summary, therefore, in determining navigability for Federal purposes a number of factors are relevant:

1. The first consideration is that there has to be some connection with interstate or foreign commerce. This can be as fleeting as international travelers arriving and taking advantage of a waterway in a commercial context.

2. It is not necessary that the waterway has already been used for interstate or foreign commerce or transportation. It is sufficient it with reasonable improvements, that a river might become navigable in the future.

3. It is not necessary that the waterway must be navigable all year round. It is possible for it to be navigable simply by reason of high water for a part of the year even though in the remainder of the year it is not able to be floated.

It would seem that today the substantial contribution to the economy of whitewater rafting and float fishing would certainly be significant enough to constitute certain rivers as being readily characterized as "susceptible of use for purposes of commerce". Therefore although the States have been more prone to expand the definition of "navigability" for their own purposes, there is ample opportunity for the Federal Courts to expand their definition if they consider that it fits adequately within the purpose of the application of the commerce clause.

The history of the interpretation of the commerce clause is replete with examples of a willingness to take into account changing circumstances and to recognize that commercial development is not going to be held up with antiquated legal definitions. Consequently, it seems that given the significance of the aforementioned commercial rafting and commercial float fishing today and their respective contributions to many state economies, that the Federal Court would have no difficulty in finding that the commerce clause could apply. The attraction of interstate and foreign clients would be sufficient to create the necessary nexus.

State Positions.

As we have noted, to the extent that a Federal Court is addressing its maritime jurisdiction, regulation under the commerce clause, and title disputes between the state and federal governments the test is navigation in fact [Hitchings v. Del Rio Woods Recreation & Park District, 55 Cal.App.3d 560, 127 Cal.Rptr. 830 (1976); Day v. Armstrong, 362 P.2d 137 (Wy. 1961)]. Otherwise, the states may adopt their own definitions of navigability [Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820 (1913)].

The importance of this discussion from Colorado's viewpoint is that given that it has not as yet adopted any view in this respect, it is open to a Colorado court to take the Federal definition and then expand it to satisfy domestic requirements. The most common way that states have expanded the Federal definition has been by including recreational use of state waters as a relevant consideration. It is important to note however, that in many decisions, particularly in western states, the courts have adopted a mixed approach because their constitutions grant rights in non-appropriated water to the public. Consequently many decisions rely in part on the state constitutional provisions and then weave in considerations which arise out of principles of navigability to develop a prevailing regulatory regime. The most notable fact, generally, is the willingness of the state courts to be quite contemporary in their thinking so that the tendency has been to widen the interests of the public at the expense of landowners.

California, for instance, has included non-navigable waters that can affect navigable waters [National Audubon Society v Superior Court 33 Cal 3d 419, 433 (1983) @ 437]. In addition in California, the definition can include recreational use of a boat [Bohn v Albertson, 107 Cal. App 2d 738, 744 (1951) and National Audubon Society v Superior Court 33 Cal 3d 419, 433 (1983) @ 435 n.17.] In Marks v. Whitney, the California Supreme Court stated that public trust easements have been held to include the right to hunt, fish, bathe, swim, to use the water for boating and general recreational purposes, and to use the bed for anchoring, standing, or other purposes [see also City of Berkeley v Superior Court, 606 Pd 362, 365 (Cal 1980); Graf v San Diego Unified Port District, 7 Cal App 4th 1224, 1228-9 (Cal Ct App. 1992)].

Similarly, in Oregon the Supreme Court derogated from the requirement of commercial navigability to permit recreational navigability:

 

"There are hundreds of similar beautiful, small inland lakes in this state will adapted fore recreational purposes, but which will never be used as highways of commerce in the ordinary acceptation of such terms . . .Regardless of the ownership of the bed, the public has the paramount right to the use of the water of the lake for the purpose of transportation and commerce." [Luscher v Reynolds, 153 Oreg. 625, 56 Pac (2d) 1158 @ 1162 (1936)].

In Curry v Hill 460 Pac (2d) 933, 936 (Okla 1969) the Oklahoma Supreme Court adopted a similar recreational test for navigability where a river was used for fishing and other recreational activities. However, the Court did indicate that the fishermen could not fix or station trot lines on the bottom of that part of the stream owned by the abutting land owner without permission of such owner. This is a case where the adoption of the test of navigability of the river, did not result in the taking of the underlying land. It is a good example of a state adopting the concept of navigability for its own purposes and modifying the test itself as well as the consequence of a determination.

In New Mexico in 1947 in State ex rel. State Game Comm'n v Red River Valley Co., 182 P 2d 421, 429-32 (N.M. 1947) the New Mexico Supreme Court found that all water are public water until beneficially appropriated and that the public can use all unappropriated waters for outside recreation, sports and fishing (ibid).

In State v McIlroy (268 Ark 277, 1980) the Arkansas Supreme Court determined that a stream used only for recreational purposes by canoeists and fishermen in flatbottomed boats 18 feet long was navigable. This was a property ownership contest between the State and the riparian owner. McIlroy (id) has been interpreted as determining that in title cases extensive recreational use is sufficient to satisfy the definition of navigability [Arkansas River Right Committee v Echubby Lake Hunting Club 83 Ark App, 276; 126 S.W. 3d 738 (2003); Alpha Trust v Culothches Bay Navigation Rights Committee, L.L.C. Ark App, CA08-1448 decided May 6th, 2009 - although reversed on other grounds].

McIlroy (supra) is interesting on a number of grounds. The Mulberry river was floatable for about 6 months a year. It was used by fishermen, swimmers and canoeists for recreational purposes. So from the outset it was recognized that its only use was for recreational purposes. In determining navigability the Supreme Court of Arkansas stated the following:

 

"The true criterion is the dictate of sound business common sense, and depends on the usefulness of the stream to the population of its banks, as a means of carrying off the products of their fields and forests, or bringing to them articles of merchandise. If, in its natural state, without artificial improvements, it may be prudently relied upon and used for that purpose at some seasons of the year, recurring with tolerable regularity, then in the American sense, it is navigable, although the annual time may not be very long."
.
.

 

"The result of the authorities is this, that usefulness for purposes of transportation, for rafts, boats or barges, gives navigable character, reference being had to its natural state, rather than to its average depth the year round (Lutesville Sand & Gravel Co. v. McLaughlin at 181 Ark. 574. 576-77, 26 S.W.2d 892 @ 893.)"

So to some extent the comments of the court in relation to commercial viability though useful in other contexts seem to have little bearing if the sole use of the stream is for recreational purposes. However, if a stream doesn't satisfy the test of being commercially valuable that will foreclose the issue.

In Loving v Alexander (supra) the court cited United States v Rio Grande Dam and Irrigation Co 174 U.S. 690, 19 S.Ct 770, 43 L. Ed. 1136 (1899) and commented that "The condition of the watercourse should be such as to ordinarily assure regularity and predictability".

In other words, predictability and reliability are sufficient to imbue the characteristic of commercial value. No-one could serious argue that a commercially successful ski field which does not have snow all year is not commercially viable. Similarly a river which can be floated by rafters or fishermen only 6 months of a year can also be commercially valuable for businesses dependent on their survival for those 6 months a year.

The court in State v McIlroy (ibid) then addressed the question where the use was recreational by beginning with a quote from Barboro v. Boyle, 119 Ark. 377, 178 S.W. 378 (1915):

 

"It is the policy of this state to encourage the use of its water courses for any useful or beneficial purpose. There may be other public uses than the carrying on of commerce of pecuniary value. The culture of rice is being developed in this state and the waters of the lake could be used for the purpose of flooding the rice fields and for other agricultural purposes. As the population of the state increases, the banks of the lake may become more thickly populated, and the water could be used for domestic purposes. Pleasure resorts might even be built upon the banks of the lake and the water might be needed for municipal purposes. Moreover, the waters of the lake might be used to a much greater extent - for boating, for pleasure, for bathing, fishing and hunting than they are now used. Id. at 382-383, 178 S.W.2d at 380." [supra @236/7]

In other words, rather than remaining a relic of the past the definition had to take account of the changes in use which were occurring over time and attempt to accommodate those changes. The Court observed that the prevailing definition in Arkansas was "from the steamboat era" implying that it was time to review it taking account of modern usages.

In a useful review of developments in other states it indicated:

 

"However, many other states have been presented with this same problem. Back in 1870, the Massachusetts Supreme Court found a stream navigable that could only be used for pleasure. The stream was about two feet deep at low water. The court stated:

"If water is navigable for pleasure boating, it must be regarded as navigable water though no craft has ever been upon it for the purpose of trade or agriculture." Attorney General v. Woods, 108 Mass. 436, 440 (1870).

In Ohio, the court recently was faced with this problem and decided to change its definition of navigation. The Ohio court said:

"We hold that the modern utilization of our water by our citizens requires that our courts, in this judicial interpretation of the navigability of such water, consider this recreational use as well as the more traditional criterion of commercial use". State, ex rel. v. Newport Concrete Co., 44 Ohio App.2d 121, 127, 73 Ohio Ops. 2d 124, 336 L.Ed. 2d 453, 457.

Applying a "public trust" to the Little Miami River, the Ohio court found that the State of Ohio ". . . holds these waters in trust for those Ohioans who wish to use the stream for all legitimate uses, be they commercial, transportational, or recreational." State, ex rel. v. Newport Concrete Co., supra.

Michigan reached a similar conclusion in 1974. Navigability in Michigan was significantly affected by whether logs had been, or could be, floated down a stream. That "flotable test" had been used by the Michigan court until it was confronted with the same problem that we have. Michigan readily admitted that its definition needed to be changed:

"We therefore hold that members of the public have the right to navigate and to exercise the incidents of navigation in a lawful manner at any point below high water mark on waters of this state which are capable of being navigated by oar or motor propelled small craft." Kelley, ex. rel. MacMullan v. Hallden, 51 Mich. App. 176, 214 N.W.2d 856, 864 (1974).

For examples of other states that have adopted similar definitions of navigation, see: People v. Mack, 19 Cal.App.3d 1040, 97 Cal.Rptr. 448 (1971); Lamprey v. State, 52 Minn. 181, 53 N.W. 1139 (1893); Luscher v. Reynolds, 153 Or. 625, 56 P.2d 1158 (1936).[supra @ 237/8]

Taking these observations into account the Court summed up its decision in these terms:

 

"Arkansas, as most states in their infancy, was mostly concerned with river traffic by steamboats or barges when cases like Lutesville, supra, were decided. We have had no case regarding recreational use of waters such as the Mulberry. It may be that our decisions did or did not anticipate such use of streams which are suitable, as the Mulberry is, for recreational use. Such use would include flatbottomed boats for fishing and canoes for floating - or both. There is no doubt that the segment of the Mulberry River that is involved in this lawsuit can be used for a substantial portion of the year for recreational purposes. Consequently, we hold that it is navigable at that place with all the incidental rights of that determination." [supra @ 238]

 

The conclusion arising from State v McIlroy (ibid) and any attempt to reconcile it with George v. Beavark, Inc.(supra) may be found in the fact that the latter case was a Federal admiralty case and the former a state application of the rules to determine "navigability".

In another case, Thomson v Dana 52 F 2d @ 763, the McKenzie river was found to be navigable in a case involving the right of a river guide and resort owner to carry fishermen for hire on the MacKenzie above the mouth of the Blue river.

As we have noted above in relation to the discussion of "navigability" under State v McIlroy (supra) the State of Arkansas was willing to concede that the prevailing definition was inherited from a "steamboat era" and that the earlier decisions had not taken adequate consideration of the possible future uses to which publicly owned water might be put. In the extracts from other decisions noted above, it is evident that a number of other states had also taken the view that the expansion of the definition to contemplate recreation was an appropriate determination taking account of modern usages and commercial practices.

Wyoming and Montana adopted a "use" approach to determining navigability. In Day v Armstrong (362 Pac (2d) 137, 143 (Wyo. 1961)) the Wyoming Supreme Court drew a distinction between the Federal concept of navigability identifying title and the state approach of determining navigability by reference to use. In Wyoming, as in Colorado, the state Constitution placed the title of all waters of the state in public owernship. Conseqently the court concluded that the issued could be adequately determined by reference to the Constitution:

 

"Irrespective of the ownership of the bed or channel of waters, and irrespective of their navigability, the public has the right to use public waters of this State for floating usable craft and that use may not be interfered with or curtailed by any landower. It is also the right of the public while so lawfully floating in the State's waters to lawfully hunt or fish or do any and all other things which are not otherwasie made unlawful " [supra @ 147]

A similar approach was also adopted in New Mexico [State ex rel. State Game Commission v Red River Valley Co., 51 N. Mex 207, 182 Pac, (2d) 421, 430-432, 464 (1945) but cf Hartman v. Tresise, 84 P. 685, 686 (Colo. 1905) in Colorado with a similar constitutional provision.

This same approach was adopted in the Montana Supreme court in Montana Coalition for Stream Access v Curran 210 Mont 38; 682 P. 2d. 163 (1984) where the court cited the Day v Armstrong (supra) approach with approval and adopted the use approach in determining the navigability of Montana waters. However the Montana Supreme Coourt was not as careful in distinguishing between the state constitution and the public trust doctrine. The correctness of this decision is discussed below.

In the context of the present discussion, it is suggested that in relation to commercial rafters and commercial float fishing/guiding, it is not necessary to go to the extreme of contemplating recreation as part of the definition of navigability. It is sufficient to only recognize that on a temporal examination of the commercial impact of rafting and floating on a particular river that a commercial activity is present and therefore the Federal definition would apply.

The real difficulty will come when it is argued that the United States v Appalachian Electric Power Co., 311 U.S. 377 (1940) approach should be adopted i.e. if with reasonable improvements a river could become a viable waterway for commercial rafting, will that lead a Court to find that a river on which no present commercial rafting activity is taking place, has sufficient potential to be considered navigable? If the litigation is occurring in a state court, it is more likely that they would consider a test of recreational activity. But in a Federal court where recreational activity is the only present activity, the potential for commercial activity would be the way that a court could find that a river is navigable.

As previously noted, it is a further step to determine that recreation is a relevant consideration in determining navigability and that would require a determination to be made by a particular state that the definition it is adopting for state purposes should be extended in that regard.

There is a separate consideration which might arise in some states and that is whether the right to recreation might be more specifically defined as the "right to fish". For instance, if it can be argued that a right to fish is a distinct and separate right from the mere "right to use water" or the "right to recreation" it may be a separate right which might be pursued. This will be discussed separately.

Colorado Position.

Essentially in Colorado, there is no position. Therefore it is a key to the whole area to first have a Colorado adoption either by the legislature or a Court of a particular definition for the purposes of Colorado and thereafter explore the implications.

As was discussed earlier, it has been suggested in two cases that there are no navigable waters in Colorado. The observations were dicta, and therefore not binding. [In Re German Ditch & Reservoir Co., 139 P. 2, 9 (Colo. 1913) (en banc). See also Stockman v. Leddy, 129 P. 220, 222 (Colo. 1912), overruled on other grounds, Denver Ass’n for Retarded Children, Inc. v. School Dist. No. 1 in City and County of Denver, 535 P.2d 200 (Colo. 1975).

However it is respectfully suggested that this view is obviously now wrong given the extent of rafting and floating which takes place commercially within Colorado. Given the developments in Federal law in determining "navigability" which have occurred since these decision, it is obvious that the Colorado Legislature cannot override that by imposing a more restrictive definition intending to exclude all waters from Federal navigable servitude [United States v. Twin City Power Co. , 350 U.S. 222, 76 S.Ct. 259, 100 L.Ed. 240 (1956)].

Suffice to say that for the purposes of the present discussion it is obvious that some rivers in Colorado are navigable and it is just a matter of time before a court makes this decision. Even if the Colorado Legislature should attempt to foreclose the issue by legislating a restrictive definition of navigability, it will be of no effect if the Federal tests of navigability determine that certain waters are navigable in Colorado.

It is also open to a Colorado court to determine that if the "use" test adopted in other jurisdictions such a Wyoming and Montana is relevant that those waters which are in fact used by the public are navigable for the purposes of the state law. However this depends on a court actually adopting this approach. At this point we are taking the very basic proposition that there are some waters which satisfy the Federal test regardless of what the state courts or Legislature attempts.

The "use" test proceeded from the constitutional right for the public to "use" the water. In Colorado the constitutional right has been limited to the right to "use" water at the point of appropriation [see discussion further here]. Rather than the questionable view of the majority in Emmert's case in restricting the meaning of "use" the decision of Harnsberger J delivering the opinion of the Supreme Court of Wyoming in Day v Armstrong (supra) was quite simple and straightforward:

 

"The title to waters within this State being, the State, in concomitance, it follows that there must be an easement in behalf of the State for a right of way through their natural channels for such waters upon and over lands submerged by them or across the bed and channels or streams or other collections of waters .....The waters not being in trespass upon or over the lands where they naturally appear, they are available for such uses by the public of which they are capable. When waters are able to float craft, they may be so used. When so floating craft, as a necessary incident to that use, the bed or channel of the waters may be unavoidably scraped or touched by the grounding of craft. Even a right to disembark and pull, push or carry over shoals, riffles and rapids accompanies this right of flotation as a necessary incident to the full enjoyment of the public's easement."[ibid].

In Curran's case [supra], the Montana Supreme Court adopted a similar approach.

 

"If the waters are owned by the State and held in trust for the people by the State, no private party may bar the use of those waters by the people. The Constitution and the public trust doctine do not permit a private party to interfere with the public's right to recreational use of the surface of the State's waters." [ibid @ 38, 163]

Their ultimate finding was succinct:

 

"In sum, we hold that, under the public trust doctrine and the 1972 Montana Constitution, any surface waters that are capable of recreational use may be so used by the public without regard to streambed ownership or navigability for no recreational purposes." [ibid].

The problem with the Curran decision [supra] is that it involves fairly sloppy reasoning. First the public trust doctrine is well defined Federally. There is no notion of recreational use as a consideration in the Federal test. Therefore implying that the public trust doctrine does contemplate recreational use is not accurate. It is open to the Court to propound a new test for the state which is in fact what they have done. But it is not correct to say that the decision was derived from a strict application of Federal authorities.

Therefore if there was not an accurate attempt to apply the Federal navigability test, the matter should have been considered solely by reference to the Montana constitution. On this basis, the consideration would have limited itself to the use of the water and the incidents of that use. This was the approach adopted in Day v Armstrong [supra] and respectfully it was more correct. Day v Armstrong [supra] limited the use of the water to floating and incidents of floating. Curran [supra] extended the use of water beyond that and then adopted a misreading of the public trust doctrine to include the right to wade fish to the high water mark. The confused approach and the fact that is was not simply applying Federal law was underlined by the dissent of Gulbrandson J who characterized the majority decision as judicial legislation.

The majority, by suggesting that they were granting the right to wade fish on such waters, were going beyond the natural incidents of floating. The consequence was to encumber the title of the landowner with a new test of recreational use for water which went beyond the water itself and affected the riparian land.

In summary, given the manner in which various state courts have had no difficulty in finding by one means or another a mechanism to either protect existing rafting and boating activities whether commercial or recreational or to go further and create an environment in which such activities are actually promoted, it is just a matter of time before a Colorado court does the same in the context of a battle between a landowner and a rafter. The inevitable outcome in the longer term should put landowners on notice, that unless they are sensitive to the interests of the public and in particular the commercial interests of growing activities like rafting and guided float fishing, they could find that they lose more than they think they are protecting. At least there is a capacity to control outcomes in Legislation. Once it gets to a court, bad cases can make for bad law.

There is an alternative route for Colorado to take. That is outlined in the discussion of the Colorado Constitution and the necessary re-consideration of Article XVI, section 5. This is discussed in detail here.

As an interesting aside, it is pointed out that on January 17th 2009, the Nevada Legislature declared that the Colorado River was navigable and as a consequence title to lands below high water mark were held by the State. Essentially the declaration was that all of the Colorado River within the State of Nevada, from the Arizona line on the north to the California line on the south, was declared to be a navigable stream for purposes of fixing ownership of the banks and bed thereof, and title to the lands below the high water mark thereof is held by the State of Nevada, insofar as they lie within the State. [1:97:1921; NCL § 1425] - Jan 17, 2009.

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Please note that these notes are only the opinion of the author on the law in Colorado and are not therefore determinative of the issue. In the event that for whatever reason it is necessary to explore these issues further, the reader should obtain appropriate legal advice.

 

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