The legalities of floating on Colorado Waters
This is a series of notes I have prepared discussing the issues in Colorado faced by boats and rafts when attempting to float over private land. The notes are in the process of ongoing revision, refinement and expansion and are just my own opinion.
As the popularity of fishing, rafting and other water sports grows, the advent of newer more durable and more lightweight boats, rafts and other craft makes practical access to many of America's waterways easier. Modern rafts are not only capable of journeying through quite extreme river conditions relatively safely, but they also permit fishermen to access waterways not previously accessed except on foot.
As a consequence more and more landowners are seeing strangers attempting to access rivers and streams which they thought were exclusively private property. This is obviously setting up a tension between those who believe that they "own" their own land from boundary to boundary and those who claim the right to float through that property.
Unlawfully accessing another's property constitutes trespass, hence one of the pressing questions in attempting to float on Colorado rivers is the appropriate application of the laws of trespass. The problem is exacerbated in Colorado because of the nascent state of Colorado law on the interrelationship between publicly owned water and privately owned river banks and beds. Other States have sought to resolve this tension by developing positions where the rights of landowners have been a little diminished by granting rights to the public to float over property, to stop and alight from craft and fish along river banks and to generally enjoy access to the publicly owned water.
In Colorado the percieved imbalance in favor of the landowner is much greater so that a number of owners believe that rafters and fishermen have no rights whatever to float over their land. They believe that by owning the river bottom they own everything from there to the sky ("cujus est solum, ejus est usque ad coelum"). This position has legal support in Colorado [ People v Emmert 597 P.2d 1025, 1027 (Colo. 1979)]. This case has not been overruled. There was a subsequent legislative amendment [C.R.S. 1973, 18-4-504.5] and an attorney general opinion in 1983 which has created an uneasy balance for the moment. But the position is unresolved and as the pressure on Colorado rivers grows the rights of the respective parties will have to be resolved.
The aggressive position adopted by some landowners that no-one has the right to float over their land is counter balanced by an equally aggressive position taken by some rafters who believe that they have the right to float anywhere in Colorado. Essentially they take the view that if they can float they have the right to float.
Neither extreme position is correct. Unfortunately the position which currently obtains arising from the Attorney General's opinion of 1983 is not correct either. Under that opinion anyone floating down a river who inadvertently touches the bottom or the sides of the waterway commits a trespass. Obviously then, anyone who is forced to walk on a river bank and carry their craft around an obstruction is also committing a trespass. This is obviously absurd and needs to be resolved in due course.
Furthermore there is an entire body of Federal law which takes precedence over the State position where it is applicable. This body of law is tied up with the Public Trust Doctrine, the Commerce Clause and the concept of "navigability" wherein those waterways which fall within these concepts are owned by the publiv and the supervening rights of the public are inalienable.
Consequently, the position in Colorado is actually not clear at all. There is a general understanding of the Colorado position but the degree to which it is enmeshed in and subject to Federal law renders it more problematic than most people appreciate.
The general perception of the right to float in Colorado over private land is as follows:
1. A titled landowner owns all of the land from the bank to the land under the river.
2. The water is public and cannot be owned by the landowner.
3. Provided a raft or craft floats over the river without touching the sides or the bottom of the river there is no trespass.
4. If a raft or boat is brought to rest by touching the bank or the bottom of the river either itself or by means of a rope or anchor, that constitutes a trespass.
5. If a person leaves a raft or boat for whatever reason (except in the case of an emergency) and touches the bottom or the bank that is a trespass.
6. A craft may remain stationary in an eddy for as long as it may provided it does not touch the bottom or the bank.
This is the general view on the law and is the advisable approach to take to avoid conflict.
However, it is not in fact correct. The Colorado view has evolved from a decision in the Emmert case [supra] in 1976 which was badly argued by Mr Emmert who represented himself. The biggest mistake was agreeing to the stipulation that the water upon which he floated was not navigable. Therefore this key issue was not argued or decided. The Court ruled, by majority, that the landowner owns from the bottom of the river to the sky and therefore anyone floating over the top of the property was trespassing.
As a consequence of the decision at first instance in 1977 the Colorado State legislature enacted a redefinition of "premises" to include the bank and bottom of a river but not the surface water. The intent of this legislative amendment was to ensure that anyone floating over the top was not criminally trespassing.
In 1983 the Colorado State Attorney General issued a memorandum explaining the amendment. The opinion said, “one who floats upon the waters of a river or stream over or through private property, without touching the stream banks or beds, does not commit a criminal trespass.” (AG Alpha No. NR AD AGALA, 1983.)
However, as noted in the opinion, the memorandum does not attempt to address the issue of civil trespass. Furthermore it does not apply to a lake, pond or other enclosed water which cannot be characterized as a river or astream.
At present this is the common understanding of Colorado law.
However there are a number of problems with this position.
The first and obvious problem is that it takes no account of Federal law which has protected the right to travel and conduct commerce over navigable waters. This is encompassed by the public trust doctrine and the pre-eminence of Federal power when dealing with navigable waters.
As noted in Emmert's case [supra], the defendant stipulated to the water in which he was floating not being navigable. That concession denied him a significant argument. It also permitted the Court to take an unremittingly aggressive position favoring the rights of landowners over the public using the natural streams of Colorado. It has also given rise to a lot of questions which create practical difficulties for floaters.
Take for instance, a fisherman floating down a river who meets an obstruction. Under the general impression of Colorado law, if the fisherman gets out of his boat and portages around the obstruction, he is trespassing.
Similarly, suppose that a farmer owning both sides of a river illegally strings a barbed wire strand across the river so low that it prevents a craft floating safely through. Any alighting from the craft to portage around it constitutes a trespass.
However neither position is correct. It is important to be aware of the legal position for one's own safety and also in the event that a landowner or a law officer confronts someone and charges them with trespass.
In addition, it is absurd to take the view that in Colorado the public have the right to float down a river and fish at the same time, but that incidents of that activity might constitute trespass. For instance, it is obvious that in the course of floating, a craft will hit rocks and obstructions and thereby scrape the bottom of the river. It might become momentarily stranded. All of these acts will constitute trespass if the current Colorado view is correct. Obviously if the interests of the public in a waterway constitutes a public easement, the public is entitled to enjoy that easement and to exercise rights which are incidental to that right of enjoyment. This will be discussed shortly.
Several introductory remarks are apt to bear in mind in considering this entire area.
1. Federal law takes precedence over state law. So where there is a conflict between the two the Federal law will prevail.
2. The right to travel and conduct commerce on navigable waters has persisted from Roman times and through English law. It has since been adopted as the Federal position in the form of the Public Trust Doctine and the Federal powers fall under the Commerce clause of the Constitution. Therefore any attempt by any state to limit it will be of no effect.
3. Much turns of the question of "navigability" of a river and therefore that concept must be considered in detail.
4. Even though a water might not be "navigable" from a Federal perspective, it may still be capable of being enjoyed given that the water is owned by the public and enjoyment is therefore a public right. Furthermore, many States have extended the concept of "navigability" to include recreation.
5. Most importantly the concept of "navigability" and the public trust doctine has evolved since the earliest cases were decided. Here are just a few instances which exemplify this evolution:
1. Originally the concept applied to tidal waters but early on in the US cases it was expanded to include inland waterways which were not tidal.
2. Originally the defintion of "navigability" was common to several jurisdictions. However in time it evolved so that the concept for the regulation of the CWA under the Corps of Engineers jurisdiction, is broader than under the admiralty jurisdiction for governing tortious claims in relation to shipping accidents. The Commerce definition lies between these two extremes.
3. The original inquiry was more historical and temporal than prospective but in time the potential of a waterway became as relevant as its history.
6. There a separate and parallel line of argument which could be developed under the Colorado Constitution which incorporates a right of the people to be able to "use" the unappropriated waters of natural streams in the State. This could be developed independently of the Federal Law.
A good example of the evolution in approach and in the change in community attitudes can be seen in Virginia in the Jackson River cases. Originally the river was not a particularly good fishery.
The U.S. Army Corps of Engineers started acquiring land in 1967 following State Legislative approval in 1946 for the construction of the Garthright Dam. Construction of the dam began in 1968. The dam created Lake Moomaw and provided cold, oxygen-rich releases in the waters below the dam creating ideal trout habitat. As a consequence interest grew in fishing the area. The river was stocked and as the sale of licences grew the stocking program generated what has become one of Virginia's premier fishing areas.
A landowner contested access issues and brought the action in Loving v. Alexander, 745 F. 2d 861, 1984 U.S. App. LEXIS 17955 (1984). Previously in the 1955 case Boerner v. McCallister 197 Va. 169, 89 S.E.2d 23, 27 (Vir. 1955) the Virginian Supreme Court had found that insufficient evidence was adduced to enable a finding that the Jackson River was navigable at that point. The position reversed in Loving v. Alexander (supra) when the US Court of Appeals found that it was navigable. The evidence the court relied on was essentially the same evidence concerning logging which the earlier court had available. The decision in Loving v. Alexander (ibid) concerned more the right to passage than the right to fish, but the point is that within just 30 years the view of the Courts applying essentially the identical test of navigability reversed its opinion.
Consequently as has been suggested in other decisions, the application of the test of navigability is an evolving concept which does take account of current pracitices and prospective potential and is by no means locked in stone. Thus in the case of Colorado, the recitation of 2 cases 100 years old which mention that there are no navigable waters in Colorado in support of a limitation of access to Colorado waterways is basing an entire legal thesis on the flimsiest of foundations. One which will not support the winds of change which have blown for the last 100 years.
Each of the concepts which are important in this analysis is discussed separately.
These various issues need to be addressed in order to strike a balance between the extreme positions of landowners and those rafters who believe they have the right to float on any piece of open water.
The economic, recreational and social importance of water sports such as fishing and rafting has grown exponentially in Colorado since the advent of lightweight durable rafts and similar craft. So to permit the rights of industries based on these pursuits to remain in limbo while landowners remain concerned about a taking of their own property rights is unsatisfactory and unsustainable.
In the fullness of time, the situation will be resolved and the unsatisfactoriness of the position indicated in Emmert's case [supra] will be remedied. Since the events that led to that case, 40 years have elapsed. Entire industries have sprung up which did not exist then. These industries employ tens of thousands of people and give pleasure to millions of other people from all over the world. There is no way that a court is going to ignore these economic and social developments. This has been evidenced in other states where generally the rights and interests of the public have been recognized while the interests claimed by more aggressive landowners have been modified to reflect the competing public interests (see discussion further, infra).
The battles have not been pleasant. High profile individuals like Ted Turner and Huey Lewis have unsuccessfully sought to exclude the public from waterways in Montana. The public has been successful both legislatively and judicially in developing a montage of rights and remedies which attempt a balance. Not everyone is happy. They never will be. But in today's day and age, there is no way that the imbalance in Colorado in favor of landowners will last forever. And when it is redressed it will be done in favor of the public.
The big question then is how will it be redressed and how extreme will it be? Sensible thinking people could work out a relatively simple solution which should accomodate both sides. To the extent that extremes persist on both sides, the acrimony will continue and the resolution may not be satisfactory. Bad cases make for bad law. Any instance of an overly aggressive landowner seeking to defend his percieved rights could easily result in a decision which goes too far in the opposite direction. The same could be said of an overly aggressive rafter. However at present the imbalance in favor of the landowner gives them the upper hand.
The solution can easily be found by a careful review of the positions which have developed in other states and in Federal law. It is intended therefore to attempt to outline those various approaches to provide some guidance as to how the future will play out.
Considering the foregoing, this is the writer's summary prediction of developments which will occur at some time in the future in relation to floating and incidentally fishing in Colorado waterways.
1. In time there will be a determination in Colorado that certain waters are "navigable".
2. Once that determination is made the public will have access to the water and the adjoining land up to the high water mark on those waters which are defined as "navigable".
3. It will not be possible for the Colorado Legislature constitutionally to alienate any riparian lands which are proximate to that navigable waterway exclusive of the public interest in that land to any individual landowner.
4. Individual landowners will not be able to prevent the public from using the water and the land to the high water mark.
5. In time there will be an expansion of the meaning of the term "use" in relation to water under the Colorado Constitution. At the very least, that expanded meaning will include the ability to use Colorado waters for floating and fishing. This will reflect the Attorney General's opinion of 1983. At a more expansive level, it will include incidental rights enumerated by the lower court in Conatser [ Conatser v. Johnson Supreme Court of Utah July 18, 2008 WL 2776716 (Utah 2008)] in Utah and therefore permit incidental touching of the bottom and sides of river banks in the course of floating through.
6. At a more expanded level, the concept of the public "utilizing" the water contemplated in Conatser v. Johnson Supreme Court of Utah July 18, 2008 WL 2776716 (Utah 2008) will be adopted and as an incident of using or utilizing the water, fishermen may be able to wade and fish on private land.
Therefore the current approach in Colorado is wrong but it is the approach adopted by a lot of landowners and some law enforcement officers.
The resolution of this will be found in a court case or a series of cases which will necessarily have to be brought between a landowner and a person who has standing and who wants, as a first step, to go onto the bed of a navigable river to the high water mark.
It is just a matter of time but it will happen. The intelligent thing would be for interested and wise people on both sides of the debate to become fully informed and seek to develop a more certain legal structure sooner rather than later.
If it is not addressed in the course of a sensible all party negotiated manner, the outcome could be a decision like the Montana Curran decision [Montana Coalition for Stream Access v Curran 210 Mont, 38; 682 P. 2d. 163 (1984) ] which amounted to judicial legislation and which resulted in years of litigation and legislative intervention.
The Curran decision [ Montana Coalition for Stream Access v Curran, 210 Mont, 38; 682 P. 2d. 163 (1984)] should be a warning to intelligent people.
There is a sensible course which might be considered in addressing the whole area and it has been set out in the Final Comments.
next - The Public Trust doctrine.