Water Education Colorado

Fighting for the Right

By Jerd Smith

With additional reporting by Jayla Poppleton

To float or forbid: the controversial line between public access and property rights on Colorado’s streams

No trespassing signs posted along Colorado’s streams and rivers signal boaters that they are about to cross through controversial waters. Some are crisp and formal; others are scrawled in spray paint on aging plywood. The message to boaters is the same: keep off the premises.

At times the simple visual message has been accompanied by aggressive action. Boaters say they have faced firearms pointed in their direction and watched bullets skip across the water. Commercial raft guides have witnessed a client hooked in the cheek following an intentional cast by a guest at a private fishing resort. Kayakers have gotten caught in barbed wire they believe was erected maliciously.

At the same time, ranchers say boaters have unnecessarily cut fencing they use to keep their cows in. Fishermen staying at riverside resorts have complained about boats disrupting fish pools. And private landowners have called outfitters’ clients obnoxious.

Such conflicts have cropped up across Colorado, from the Arkansas River to the Yampa, from South Boulder Creek to the Taylor River. At their core, each questions how a public resource-the state’s hallmark rivers and streams-can be used by the public while protecting the property rights of those whose lands run alongside, and under, the streams.

This year, after a 2009 confrontation between landowners and rafters in the Taylor River Valley near Gunnison, Colorado Rep. Kathleen Curry attempted, with House Bill 1188, to pass a new law that would have more clearly defined public access to rivers, at least for commercial rafters.

Her bill drew hundreds of people to the stately marble halls of the Old Colorado Supreme Court chambers in downtown Denver to listen to the heated testimony echoing from hearing rooms. “You had to search even to find a place to stand,” said Doug Kemper, executive director of the Colorado Water Congress, a nonprofit group representing water interests across the state.

Hearings ran late into the night. Constitutional ballot initiatives, four from pro-rafting groups and 20 from private land coalitions, each trying to protect their interests, flooded the Secretary of State’s office even as the legislation was still being drafted, according to Kemper, whose organization was asked to weigh in. HB 1188 would have sharply limited the ability of landowners to press trespassing charges against boaters given certain conditions. It also would have made it easier to prove a pattern of use that would give commercial rafters legal access to streams that they had traditionally paddled. And it would have added to existing protection under Colorado’s recreational use statute for landowners against liability. But as the bill passed through the Legislature, it was reduced to merely remanding the issue to the Colorado Water Congress for study, and it died in the Senate.

Legal experts say the bill failed because it tried to declare that there had always been a right to float on Colorado rivers, something that cannot be established without a strong legal foundation. In a sense, the bill as introduced went too far for some, by including any river stretch that had been commercially rafted at least once prior to 2010. On the other hand, it didn’t go far enough, focusing narrowly on commercial use and excluding private boaters. But Curry said the bill died because of misinformation distributed by private landowners and agricultural interests who opposed the measure. “They said every river in the state would be opened up for every kind of use. But members of the House knew it was limited to commercial rafting on historically run rivers,” she said.

Nothing, in the end, happened at the Capitol. Weeks later, far from Denver, a confidential settlement on the Taylor was reached, after Gov. Bill Ritter strongly urged both parties to come up with a solution. The settlement, which allowed some floating to resume, will last for four years. Each side of the statewide dispute agreed to withdraw its ballot initiatives while the search for a solution continues.

“We are hopeful that mediation [on the Taylor] will calm things down and drive people who have issues to come together,” said Bob Hamel, a commercial raft outfitter and president of the Colorado River Outfitters Association, which represents 170 commercial rafting companies. “But the settlement didn’t solve anything. It just put a band-aid on the hot spot.”

Gov. Ritter has formed a 17-member task force that will develop a process for settling disputes on a case-by-case basis, under the notion that a one-size-fits-all approach is unlikely to work across all of Colorado. But outfitters like Matt Brown, one of the parties involved in the Taylor River agreement, are wary that the “goodwill” process Colorado has historically relied on to allow boating on streams crossing through private property could unravel.

“Sooner or later we’re going to run into someone who will not budge on this and that will end it all,” said Brown, who owns Scenic River Tours. “Really, the basis of the whole dispute,” he said, “is that landowners firmly believe they have the right to exclude people from floating through, while everybody else firmly believes they have a right to float down the river. You can’t put those two groups together to come to a compromise unless people know exactly what the law and their rights are.”

Up to this point, the problem is that the law remains unclear.

 Who is in the right?

In the United States, the navigability of a river is key to determining who can use rivers. If a stream is navigable by federal standards, then it is controlled by the state and open to the public. Such massive waterways as the Ohio, the Mississippi and the Missouri were declared navigable early on because they connected states to each other and were used to conduct commerce.

Colorado, for the most part, doesn’t have those kinds of rivers. Though its eight major river basins are the genesis of a water supply that serves millions of people from Los Angeles to New Orleans, the rivers that are born here are too puny to navigate except by smaller, private craft like rafts, kayaks and canoes. Most of Colorado’s waterways are not formally considered navigable, and as a result, where streams traverse through private property, courts have decided the landowners technically own both the streambed and its banks. Although they don’t own the water flowing through their property, the issue of whether someone can float down “their” stretch of river is sticky.

Modern rules governing Colorado rafting have been shaped for 31 years by a state Supreme Court ruling known as People v. Emmert, in which the trespassing conviction of three private fishermen was upheld. In this 1979 ruling, the court said the Colorado Constitution granted public ownership of state rivers and streams only to protect the power of water right holders to take water from the stream through appropriated water rights, not to grant public access to the waterway. But even then, the two dissenting justices cried foul, arguing that the decision failed to address the public nature of the streams.

One of the dissenters, Justice Carrigan, wrote: “The majority opinion dramatically alters the law in Colorado as it has been perceived by the many boaters, rafters and tubers who for years have sought rest, recreation and relaxation on our beautiful streams and rivers. Those who in our state constitution dedicated our natural streams to the people of the state were not elitists. They did not reserve the enjoyment of these great natural resources to the few. Nor did they exclude from such pleasures all but the few who owned land on stream banks. If the recreational use of streams was not among those uses for which streams were reserved to the public, it is impossible to conceive what uses were contemplated and reserved by the constitution.”

The majority of the court, however, declared that the public did not have the right to float on a nonnavigable stream through private property without the landowner’s permission. Anyone who did so could be convicted of criminal trespass, whereby they could be arrested and prosecuted. But, after Emmert’s conviction the Legislature amended the state statute defining premises for the purpose of criminal trespass to explicitly include only the stream banks and beds while deliberately excluding the water itself. And so, the law has been largely interpreted to allow boating through private property as long as contact with the streams’ banks or bed is avoided and boaters don’t get out of their boat.

Incidental contact, where boaters hit a rock or accidentally touch part of the streambed could technically still be considered trespassing. But in Gunnison County, home of the Taylor River, the local sheriff and district attorney have issued statements saying they will not try to prosecute anyone for bumping a rock, or even getting stuck on one, as long as their intent is to keep moving downstream.

 Civil trespass

The law remains muddy on the issue of civil trespass, where a landowner could take a boater to court to have him or her directed to stop running the river. In 2001, Gateview Ranch sued Cannibal Outdoors for civil trespass on the Lake Fork of the Gunnison near Lake City. A pre-trial ruling issued by the water court stated, in effect, that the Legislature’s prior change to the criminal code did not deprive landowners of their right to maintain an action for civil trespass against boaters. However, nothing in the case was binding; Cannibal went out of business before a final judgment was reached. Brown believes it was legal costs that drove Cannibal out: “They basically ran the outfitter dry.”

The confidential agreement Brown is party to on the Taylor came about after a riverside ranch, now called Wilder on the Taylor, was bought by an out-of-state developer, who promptly determined to exclude Brown’s Scenic River Tours and another outfitter, Three River Resorts, from running the 2-mile stretch of river crossing through the property; a stretch they had floated through for three decades. Brown has held a federal permit to raft the Taylor since 1977-most of the 7-mile stretch runs through U.S. Forest Service land-which limits the number of clients he can ferry downstream each season, a number that he says hasn’t changed in these 33 years. To reach the agreement, Brown had to cut those numbers back significantly.

Now, Steve Roberts, whose family has owned Harmel’s Resort on the Taylor since 1957, is threatening legal action. Brown says he used to take all the Harmel folks rafting, until they parted ways following what he calls a “disagreement in business”. Roberts had allowed private rafters to float the 3/4-mile stretch of river running through his property for years, but after investing $100,000 to improve trout habitat and re-stocking the river each year for his clients’ enjoyment, he objects to commercial rafters floating through.

Roberts, whose clients also go rafting farther upstream, says he’s always been a supporter of rafting, but not if it harms his fishery. He believes commercial outfitters should at least be required to pay him for access and is so fed up with the situation that he’s placed the resort up for sale. Brown is equally frustrated: “Just tell me what the rules are, and I’ll play by them.”

Boaters report continued threats from landowners taking the matter into their own hands-they’ve faced armed property owners on the Blue and Taylor rivers, barbed wire strung across boat-worthy streams like the Uncompahgre, South Platte and St. Vrain right at head height, and trees they think may have been intentionally dropped across the Elk River to create dangerous “strainers.” And some property owners have threatened to file trespassing lawsuits or have tried to have river outfitter’s permits revoked, even on river stretches like Willow Creek in Routt County that have been commercially boated for decades. Meanwhile, property owners grow increasingly frustrated over their inability to prevent what they view as trespassing into their private property.

 Access permitted and denied

As of this year, Colorado is one of only two states that has not resolved the issue of floating through private lands. North Dakota is the other. In Wyoming, boaters have broad public access to streams because the Wyoming Constitution grants ownership of the water to the public. The same is true in Montana and New Mexico. Idaho has broad public access too. And in Utah, incidental contact and portaging are allowed; the only prohibited activity is walking on the streambed without landowner permission, and even that was permitted for a brief period, before the Utah Legislature moved this spring to reverse a state Supreme Court decision from 2009.

Colorado boaters can legally float through private lands without risk of civil trespass either via easement, where it can be proven that use has occurred routinely or continuously over at least 18 years, or by receiving permission from landowners. Sometimes, the issue is gaining access to the river, and boaters often utilize public put-ins and take-outs, floating through private land in-between. State agencies, such as the Division of Wildlife, sometimes pay landowners for access to streams so that people may fish, for instance. On the Yampa, Colorado State Parks manages access points it has acquired through easements and clearly marks segments of private and public water along the riverbanks using color-coded signs so boaters can be respectfully aware.

On public lands, boating is typically legal, though commercial trips are often regulated through permit systems and are then closely monitored by state and federal agencies. On the Arkansas, the most heavily rafted river in the United States, according to Hamel from the Colorado River Outfitters Association, rafting is governed by a series of agreements that are overseen by Colorado State Parks. Rafting on most rivers is regulated by a patchwork of local, state and federal agencies.

In many areas, limits on commercial rafting help protect the peace. On one section of the Arkansas, where Hamel rafts, commercial rafters have to be off the river by 5 p.m. And in particularly sensitive areas, such as the Black Canyon of the Gunnison National Park or the Cache La Poudre, where Wild and Scenic designation is in place, raft companies have carefully planned launch windows, some as brief as 30 minutes up to two hours, according to David Costlow, who runs Rocky Mountain Adventures in Fort Collins. In that time, outfitters must unload their boats, settle their guests and move their vehicles to minimize disruptions.

Such limits are helpful in balancing use of the rivers, but not in all cases. As fishing ranch owners like Roberts consider the investments they have made in providing a serene, high-quality fishing experience for guests, they’re fighting for their constitutional right to deny access to boaters, whether they be private or commercial.

John Hill, a long-time water attorney who represented the landowner in the Taylor River dispute, and his partner Dick Bratton say key to the river access conundrum is privacy and the ability for private property owners to keep people out. “The most important attribute of private property is the right to exclude others,” Bratton explained. “If the government is going to try to take that away, then it is going to have to pay.” He suggests landowners should be compensated for relinquishing a portion of their private property right. Boating rights, he says, will also have to co-exist with the rights of ranchers to maintain cattle fencing in rivers and with fishing club owners who want to protect investments in fisheries and stream habitat. And Bratton argues that these are as important, and practical, as the rights of boaters.

 Moving beyond disagreement

Dave Johnson, who has guided fishing trips on the Roaring Fork for 15 years and owns Crystal Fly Shop in Carbondale, thinks floaters should give private landowners the respect they deserve, including picking up trash, not getting out of the boat and minimizing “noise pollution.” People in the Roaring Fork Valley are “sympathetic to the floating public,” he said, and “no one is inhibiting public access in this valley.” The town of Carbondale, recognizing the importance of the fishing industry locally, has even required landowners to provide easements up front as a condition to having new developments approved in some instances. And in Garfield County, several subdivisions have voluntarily offered similar fishing easements, which “greases the skids” when it comes to gaining approval, according to one land-use planner there. Johnson thinks if legislation is necessary in the future, it should apply to the general, non-guided public. But he also says, “If people are going to be buying boats, they need to educate themselves in order to be compliant.”

American Whitewater is producing a video to inform its membership about the laws, boaters’ rights, and how to manage conflict and “be a good neighbor,” said the organization’s Colorado Stewardship Program director Nathan Fey. “We want to teach them not to infringe on someone else’s rights but still be within their own.” The organization is also proposing alternatives to barbed wire that could keep cattle from escaping confinement without posing a public safety hazard; they suggest a “curtain” made of PVC pipe hung vertically from a high wire across the river. Cows would see it as a barrier while boaters could sneak through.

On the Arkansas River, Colorado State Parks, through its partnership with the Bureau of Land Management at the Arkansas Headwaters Recreation Area, helped a rancher place large boulders at river’s edge to keep cattle from crossing the property line via the river without using hazardous barbed wire.

Both groups cite other examples where individual agreements to allow boating while mitigating a landowner’s just concerns have been worked out. Recently, Colorado State Parks purchased a small piece of land from a property owner near Buena Vista who was concerned about trespassing and liability related to boaters getting out to scout and portage around an irrigation ditch and dam pourover. The landowners were also genuinely concerned for the boaters’ safety. State Parks used the riverside land to create a small portage trail that is well-marked and will soon be delineated from the rest of the property by a short rock wall.

American Whitewater worked out an agreement with the private fishing club Sportsmen’s Paradise in 2008, resolving a decades old conflict on the South Platte River. Historically, kayakers would put in on public land upstream of the club, then paddle through 2 miles of fishing club property to reach their destination: Wildcat Canyon and its world-renowned Class V whitewater. The frustrated club members had hung a trash rack from a bridge, creating a dangerous obstacle the kayakers had to portage around, and tried to have the boaters arrested. Recognizing it was going too far, the club now allows boaters to drive through its gated property, with conditions, in order to reach an alternate river put-in on the downstream end of the property. “It’s a unique case,” said Fey, “but it’s what the governor is looking for with his task force.”

Other groups have come together or are in the process of forming to address local access and private property issues. At the Arkansas Recreation Headwaters Area, a citizen’s task force operates proactively to resolve conflicts. It’s composed, says Hamel, a bit “like Noah’s Ark.” There are two representatives each from seven stakeholder groups, including private boaters, commercial boaters, private landowners, environmental groups and local governments who meet five times a year. The task force will hear landowners’ complaints and investigate. If a commercial outfitter is in the wrong, Colorado State Parks can revoke permits or place them on probation. In other instances, solutions like the portage trail are devised. Key to its success, says the recreation area’s park manager Rob White, is that “everybody’s buying in.”

In western Colorado, the diverse coalition Club 20, which calls itself the “voice of the Western Slope,” has added a subcommittee to look at voluntary agreements between landowners and boaters. Kent Vertrees, a longtime avid boater and commercial guide who recently joined the subcommittee, says they will be looking at existing agreements around the state, fine-tuning strategies and trying to develop other win-win options, but that such outcomes are always dependent on willing landowners.

 Long-term, blanket solutions

Despite existing win-win agreements, whether this kind of conflict can continually be resolved via negotiation isn’t clear. Lori Potter, a natural resources attorney and an advocate for the public’s right to float, says negotiated agreements that have opened and maintained access to some private stream segments are uncertain and difficult to achieve. “Negotiated agreements have worked in some instances and failed miserably in others,” Potter said. “For rivers on which there is a series of private owners, such as the South Platte, it is extremely difficult to resolve the issue by negotiation because there are so many different landowners with different philosophies and agendas, and each could demand a separate agreement with different terms.”

Hill thinks incentives for private landowners to grant access, such as tax breaks similar to those used for landowners who agree not to develop their land to preserve its natural beauty for the public’s benefit, may be useful. But ultimately, the courts will likely have to determine whose rights prevail.

Mark Squillace, director of the Natural Resources Law Center at the University of Colorado, would like to see the question of navigability for Colorado’s rivers resolved legally, as it has been in other states using a federal test for navigability known as the Daniel Ball Standard, by which rivers must be considered navigable by law when they are navigable in fact as highways for commerce. States such as Alaska have determined that commercial recreation is sufficient to establish navigability, he said. “It seems to me that there is a compelling argument that if a stream is capable of being used in its natural condition, as it existed at statehood, then it is navigable. And all of this goes away.”

Bratton and Hill disagree. Historically, it has been difficult to establish navigability based on such activities as log floating and trading, they say. And so far, no one has been willing to pay the $300,000 to $500,000 it would take to research and bring a case to determine navigability based on commercial uses.

Even if Colorado remains a “universe” of nonnavigable rivers, as one lawyer put it, many believe the courts need to weigh in on the question. “A basic legal framework, enacted by the Legislature or decreed by the courts, would level the playing field and make it feasible for both rafters and landowners to come to the table with neither one holding all of the cards,” said Potter.

Such a legal framework would need to clarify some issues for landowners: whether they have the ability to protect assets such as private fisheries, what barriers constitute criminal obstruction, do they need additional liability protection from instances where a boater might incur injuries floating through the property, and how to protect their privacy. Similarly, rafters would need more definitive protection against incidental contact and guidance on whether certain activities are allowable: dropping anchor, eddying out, standing in the river to dislodge a stuck raft, fishing or portaging around hazardous obstructions.

Why 2010 has been so tumultuous isn’t clear. Some believe Colorado’s growing population makes it inevitable that conflicts will arise as more people seek to use the same streams and that when they do, existing conflicts in the law will be uncovered. Kemper has a different take. This year’s controversy, he says, masked what has been more than 30 years of reasonable accommodation on the rivers, agreements that no one knows about “because they are successful.”

“The existing law has been what it’s been at least since Emmert. If you seek a legislative change, are you going to fix the issue or make it worse? There is some uncertainty about this access issue, but in attempts to clarify it, you have to be careful not to create another set of problems,” Kemper said.

Curry believes the mediation process Ritter has initiated holds promise but that the Legislature remains the proper place to resolve the issue, or at least give guidance to the courts, and it demonstrated with painful clarity this year that it cannot do so. “This is dead in the Legislature until some more trust can be built,” she said.

Until the rules are better defined, property owners, outfitters and private boaters alike are swinging between offensive and defensive postures in the battle for their rights. Some are standing firm on philosophical ground. Others are trying to walk a fine line toward peaceful resolution. Will an overriding truce be found? Bratton thinks not: “Until there is litigation to determine what the law is, this isn’t going to be settled.”

And that means that use of the streams where no trespassing signs dot the riverbanks will likely continue to be disputed, at least for the foreseeable future.