The legalities of floating on Colorado Waters Deliberate obstructions. One issue often faced by boaters and rafters, is where a property owner deliberately constructs some form of obstruction which prevents the continuation of the journey without having to portage around the obstruction. In Colorado it is actually illegal for a landowner to string a strand of barbed wire across a river to prevent passage. Under 18-9-107 of the Colorado Revised Statutes the following offense is provided: (1) An individual or corporation commits an offense if without legal privilege such individual or corporation intentionally, knowingly, or recklessly: (a) Obstructs a highway, street, sidewalk, railway, waterway, building entrance, elevator, aisle, stairway, or hallway to which the public or a substantial group of the public has access or any other place used for the passage of persons, vehicles, or conveyances, whether the obstruction arises from his acts alone or from his acts and the acts of others; or (b) Disobeys a reasonable request or order to move issued by a person the individual or corporation knows to be a peace officer, a firefighter, or a person with authority to control the use of the premises, to prevent obstruction of a highway or passageway or to maintain public safety by dispersing those gathered in dangerous proximity to a fire, riot, or other hazard. (2) For purposes of this section, "obstruct" means to render impassable or to render passage unreasonably inconvenient or hazardous. (3) An offense under this section is a class 3 misdemeanor; except that knowingly obstructing the entrance into, or exit from, a funeral or funeral site, or knowingly obstructing a highway or other passageway where a funeral procession is taking place is a class 2 misdemeanor. In simple terms, any obstruction intentionally erected which renders a waterway impassable constitutes an offence. There are broadly two circumstances in which an obstruction will be relevant and therefore 2 different remedies. The first is where the obstruction is encountered while the journed is being undertaken. The second is once the obstruction is known. 1.     When the obstruction is encountered during the journey. Obviously it is totally impractical for a rafter to reverse direction and travel back upstream when encountering an obstructions. We have already considered the possibility of the right to portage. A distinction can easily be drawn between a naturally occuring obstruction such as a fallen tree or a land slide. But if an obstruction is deliberately constructed, will that make a difference? Essentially is should not from the viewpoint of the rafter. It remains an obstruction. If however the rafter embarks on the journey knowing of the existence of the obstruction. Will that make any difference? Given the discussion concerning portage, it is suggested it makes no difference to the public's right to float. Consequently, it appears that contrary to public perception in Colorado there is a right to raft and kayak on rivers and be able to avoid obstructions without being a trespasser provided the portage is in the most efficient and reasonable manner and respects the rights of the landowner.   2.     Full knowledge of the obstruction. It would appear that once a deliberate obstruction is known, there are 2 remedies. The first is to report the offense and then rely on the relevant authorities to take action to have it removed. The second would be for a person having standing, such as a rafter, to bring a personal action for nuisance against the landowner and seek to have the structure removed. If a rafter, knowing full well that an obstruction has been erected embarks upon a journey knowing they will have to portage around the obstruction, they will not have the luxury of arguing that it is an emergency. Therefore they will have to rely upon the inherent right of portage. The Right to Fish Back to main Article 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.   [Main Index]
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