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The legalities of floating on Colorado Waters
Final Comments. Having considered the authorities and the approaches which have been adopted in different states, it is obvious that at some point the law in Colorado will be updated and the rights of floaters on Colorado rivers will be enhanced. The question is how this will occur. It might be in the context of litigation by some landowner seeking to bring an action in trespass against a boater who has allegedly committed either a civil trespass or possibly a criminal trespass in the course of floating. It might be an action against a wade fishermen alleging criminal trespass. It might be a wade fishermen bringing an action against a landowner seeking a declaration of his right to be able to wade fish a stretch of river. It might be a rafting company or a floating fly fishing guide seeking a declaration that they have the right to stop on riparian land below the high water mark arguing that the river is navigable under the Commerce Clause. It might be an action in nuisance brought by a fisherman or rafting company alleging that the structure such as a low bridge or fence is blocking a waterway and preventing the right of passage. It might be that the Colorado legislature, in response to pressure from either rafters or landowners seeks to either expand or limit the right to float and the matter is challenged either in State or in Federal Court. There are a number of ways in which the matter will ultimately get before the courts. These are just a few possibilities. The problem generally is that bad cases make bad law. It would be most unfortunate if the consequence of the case is to throw rivers open to the extent that rivers are open in California. This would be unfortunate for a simple reason. Most Colorado rivers, particularly those which have significant run-off from the mountains, have very high flows during run-off which damage banks and the soils. In many instances the damage is exacerbated by farming practices which allow cattle to graze along the rivers edges and destroy the natural grasses which would otherwise provide some protection to the river banks in high water. If a decision was made which is expansive as the Californian approach and the rivers are rendered public property, who would maintain the banks and beds of the rivers for future generations? Landowners would not make the investments necessary to maintain the banks beyond protecting their own property and would certainly not make improvements which would protect and enhance the river if they new that the public would just park there to the high watermark and take advantage of the good work done by the landowners. On the other hand the current view of the law is just too restrictive. It makes no sense that the rafter can float down a river, but cannot drop anchor, even for a very short period, to re-adjust a load or, in the case of a fisherman, to have lunch or re-rig a rod. Therefore the desirable outcome would be a position which has minimal impact upon the landowner and leaves him with sufficient interest in the river to continue to maintain it and where he feels inclined to actually enhance it. From the rafter or fisherman’s viewpoint, the ability to stop for a short period, to be able to portage around obstructions without fear of prosecution and the ability to ensure that a remedy is available if a landowner vindictively strings up a strand of barbed wire or places an obstruction in the river is equally important. Of additional importance to fishermen and rafters is the ability to reasonably access the waterway in the first place. In Montana the recent river access legislation granted boaters reasonable rights to access rivers from next to public bridge abutments while permitting ranchers to adequately secure their property boundaries for the purposes of enclosed their herds. There is it suggested that a legislative amendment supported by both side of the debate would be the most sensible way to proceed. Ideally the parties would agree on the Day v Armstrong definition of “use” of the public water and put that in legislative form. The parties would then agree on a bridge access amendment similar to the Montana provision and then seek to have that enacted. The benefit of such an approach would limit the infringement on the property owner’s rights but permit a sensible range in incidents to the full use by the public of the public waters. The bridge access amendment would codify the publics right to access the water from a public bridge and at the same time define the extent to which a rancher would be entitled to fence his property to the edge of the bridge. Time will tell if this will occur.
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.
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