The legalities of floating on Colorado Waters
Generally, the right to portage, or carrying, roping or walking a craft around an obstruction or hazard may be addressed in 2 ways. The first is in the case of navigable waters. The second is in the case of other waters over which the public has an easement or right to use [usufruct] even though the water is not considered navigable.
Where the river is navigable as determined under the traditional public trust doctrine, the public owns or has an easement over the waterway to the highwater mark and can therefore portage around an obstruction. The right of portage, is part and parcel of the right to use a river for travel and commerce. Consequently, if a craft is on a navigable stretch of water and needs to be carried around an obstruction to the next navigable section, that right is a public right and is not variable by State legislation. [e.g. Economy Light & Power Co. v. United States, 256 U.S. 113 (1921)].
It follows therefore, that if a member of the public floats down a river and reaches an obstruction the rafter has a right to be able to portage around the obstruction without committing a trespass. The only question might arise if the waterway is running at the highwater mark and the portaging must be done over private land above this point. In this eventuality, the question would be determined by reference to the issues noted below in relation to non-navigable waters over private land.
An incidental question in this context is whether the existence of an obstruction giving rise to the need to portage prevents river from being navigable in the first place. The answer to that is no. There are a number of Federal cases which consider rivers boatable even though they were only intermittently capable of being floated.[e.g The Montello, 87 U.S. 430 (1874.)].
As there has been no determination in Colorado concerning the appropriate test for "navigability" this approach though with merit, has little application prior to the necessary determination.
If the public has a right to float down a river fishing or paddling, the right is in the nature of an easement or in the exercise of a usufruct. In order for the public to fully enjoy its rights there will be a number of incidental rights which will also be exercisable. For instance, a touching or scraping of the bottom of the river which is incidental to the process of travelling would be a natural incident. In addition, if the flow became too shallow it would be a natural incident to be able to disembark from the craft and push through the riffle or shallow waters. The question is how far do incidental rights extend?
The Supreme Court of Utah recently decided the point in Conatser v. Johnson Supreme Court of Utah July 18, 2008 2008 WL 2776716 (Utah 2008). The Conasters sought a declaration from the district court that the public had the right to enjoy a number of incidents to the public right to float and fish. The District Court limited the rights to "being upon the water" and touching the privately owned bed of the river only as an incident "to the right of floatation upon" the water.
The Supreme Court reversed the lower court finding that the public had the right to "engage in all recretational activities that utilize the water" and to "touch privately owned beds of state waters in ways incidental to all recreational rights provided for in the easement."
In Utah, in the case of navigable waters the public owns the bed of the river [ ibid @ 4, Monroe v State 175 P 2d 759, 761 (Utah 1946) (quoting Harrison v Fite, 1248 F. 781, 784 98th Cir. 1906)]. But in the case of non-navigable waters, the public still has an easement to enjoy the water regardless of the ownership of the bottom of the river [ibid, J.J.N.P. 655 P2d at 1137; Day v Armstrong 362 P.2d 137 (Wyo. 1961)].
Essentially the Supreme Court decided that the public had the right to "utilize" the water and therefore that carried with it the incidental right to undertake activities which flowed from that right as a natural consequence of its exercise. This included the right to walk/wade while fishing because that was "utilizing" the water. Provided the walk/wading was not intrusive and was incidental to the utilization of the water it was legal.
The usefulness of the decision is found in the finding by the lower court that even if a more restrictive view is taken of the public's right to enjoy the water and the right is limited to floating upon the water, it is a natural incident of that use that a craft may at some point have to be carried around an obstruction. Even on this narrow view, the lower court decided that it was not a trespass to quickly alight from the craft and walk around the obstruction where the walking is a necessary incident to permit the public to continue to float. The lower court came to this view relying on the Wyoming decision in Day v Armstrong 362 P.2d 137 (Wyo. 1961).
In Day v Armstrong [ibid] the Wyoming Supreme Court made the observation that it was a natural incident of the right to float to be able to alight from a craft and drag it over or around obstructions.
In Curran's case [Montana Coalition for Stream Access v Curran 210 Mont, 38; 682 P. 2d. 163 (1984)], the Montana Supreme Court adopted a similar approach. After finding that the public trust docrine and the 1972 Montana Constitution permitted recreational use of any surface waters that are capable of recreational use may be so use without regard to streambed ownership or navigability for non-recreational purposes, the court indicated:
It therefore is quite clear that either under the public trust doctrine, or as an incident of the constitutional right to use the state waters, the public has had the right to portage in various states. However, in Colorado, there has been no determination of navigability and there has been no finding of a right to use unappropriated public waters in a natural stream. Therefore what is the current practical position?
There are several approaches to this question.
First, it is suggested that in Colorado, given that the public owns the unappropriated water in rivers and streams and has the right to enjoy that water, inter alia, by floating that it is a natural incident of the right to float to be able to portage around an obstruction. This is without regard to the question whether the particular river is considered "navigable" or not. The nature of the public's right to use the unappropriated water in a natural stream is discussed further in the context of a discussion of the Colorado Constitution. Whether a Colorado Court will take the wider view adopted by the Utah Supreme Court remains to be seen.
But until a court or the legislature addresses this question, it must be accepted that any form of portaging whether above or below the high-water mark potentially opens up a claim of trespass, both civil and criminal.
However, there is a line of argument which is discussed in relation to deliberate obstructions which would provide some relief to a rafter. Similar principles to those discussed in relation to deliberate obstructions would apply, for instance, in the case of a natural hazard where there might be an implied right to portage out of necessity. The right might turn on the ability of due diligence to reveal the natural hazard.
If a natural hazard such as a fallen tree was not knowable because it has recently occurred, that might relieve the rafter of the burden as no amount of due diligence would have revealed the hazard. The argument would be that the rafter, having no possible knowledge of the hazard, would in the absence of specific knowledge of no right to portage, presume that the landowner would grant permission to portage by the shortest least invasive route.
If the hazard was so severe as to be life threatening, the law would impose an obligation on a landowner to grant the right to portage. So in such extreme circumstances, if the landowner called the sheriff it would be highly unlikely that the sherrif would issue a ticket. But the circumstances would necessarily have to be extreme.
In contrast, in the case of a natural hazard such as a permanent waterfall, which would be known if appopriate due diligence was undertaken, it could be argued that the assumption of the risk does not relieve a rafter from the consequences of trespassing. In the latter case, the rafter would be liable for trespass and not be relieved by arguing an implied right to portage if the hazard was well known, and it was also known that the landowner did not permit trespassing i.e. he had taken steps to indicate there was no implied right.
It is suggested that the approach adopted by a court would be that a rafter cannot assume that he has a right to portage. In the absence of specific permission being granted, the portage would be available as a last resort. A rafter is bound to undertake all due diligence to ascertain that there is no risk of portaging, or if there is, that permission will be granted. Of course a court would not condemn a negligent or reckless rafter to have to drift into a hazard. But if a rafter failed to undertake reasonable due diligence and just assumed that everything would be OK, a court would not be disposed to reward such a cavalier attitude. The rafter would be liable for trespass.
Of course where a landowner creates a deliberate obstruction, the considerations will be different. That is discussed next.
next - Deliberate Obstructions.