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There's an old saying: Be careful what you wish for,
because you might get it.
It's something to keep in
mind when considering the confused state of aquatic
trespass law in Colorado.
The basic question is pretty simple. If you float on a stream as it passes over private property, are you trespassing?
Under the federal constitution, Congress regulates interstate commerce, like the Mississippi River that conveys goods and people from state to state.
But Colorado rivers don't carry barge traffic and
steamboats have never seen much use here. Thus our rivers
are not commercial thoroughfares as defined in 1870 under
the federal Daniel Ball Rule,
and it's a state
matter.
The state began pondering the question on July 3, 1976, when David B. Emmert, Berlin Taylor and Elbert Wilson floated down the Colorado River in Grand County. They started to float over land owned by the Ritschard Cattle Co., and Kremmling rancher Con Ritschard, along with a deputy sheriff, was there to greet them at a low bridge.
Emmert and his companions were duly convicted of third-degree criminal trespass. The decision was appealed, and the trespassing conviction was upheld in 1979 by our state supreme court.
However, the legislature changed the trespass law in
1978, and in 1983, the state department of natural
resources inquired of the attorney general: Does the 1978
law expose persons who float or boat on Colorado rivers
and streams to criminal trespass prosecution if they float
across private lands, provided that they do not touch the
river bank or river bed
, and Does that provision
authorize adjoining landowners to prohibit or otherwise
control such floating or boating?
Attorney General Duane Woodard responded that I
conclude on both questions that it does not.
So
floating was no longer criminal trespass, because the
legislature had changed the definition of premises
in regard to trespass, but Woodard wrote that this statute
did not change matters regarding civil trespass.
That is, a property owner who suffered damage from floaters could try to recover those damages in court. That legal process began in the summer of 2001, with a resort along the Lake Fork of the Gunnison bringing a civil action against a river outfitter based in Lake City.
In December, District Judge Steven Patrick ruled that civil trespass could apply, and a full trial is scheduled for this November. There should be quite a crowd with both floating-rights groups and property-rights groups appearing as friends of the court.
All this attention means that this is more a political question than a legal question. Our statehouse has an abundance of Republicans who will tell you that courts shouldn't make political decisions, that these issues should be addressed by the elected representatives of the public.
I couldn't agree more here, but I haven't heard of any
legislator coming forward with some proposal like All
natural streams flowing in excess of 100 cubic feet per
second are hereby defined to be public thoroughfares
...
or The list of offenses punishable by death
shall be amended to include floating over the real property
...
That's because politicians like their jobs, and they keep their jobs by not taking definitive stands on controversial issues that have powerful lobbies on both sides -- in this case, the potent recreation and tourism industry versus the mighty real-estate and property-rights groups.
When the General Assembly fails to do its job, Colorado
voters often turn to amending the state constitution, and
as you might have guessed, there's a proposal in the works
to put Colorado's streams under a public trust
doctrine
that would apparently legalize floating on all
streams.
But if this goes through, would it stop at floating? A story in last Monday's Wall Street Journal concerned the situation in Texas, where rivers are public thoroughfares.
Thus they have become favored spots for hard-core spewt and ATV drivers to strut their stuff by driving up and down shallow rivers.
As that article explained, ... Texas rivers are
generally considered public property, even when they run
through private land... The Nueces in southwest Texas and a
handful of other rivers are becoming congested, off-road
trails.... The river authority estimates that hundreds of
vehicles crawl up and down the 108-mile-long river on some
busy summer days.
If Colorado rivers became public thoroughfares, you can
bet our motorized-recreation lobby will demand travel
rights so that public areas are open to all users with
$40,000 vehicles, not just the inner-tube elite.
Monster pickups, ATVs, motorcycles, jet skis -- you name
it, if it's loud, you'll find it racing in our streams.
That's certainly not going to help our rivers or the fish therein, and since many supporters of the public-trust amendment are environmentalists, perhaps they should reconsider what they're wishing for.
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