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The legalities of floating on Colorado Waters Navigable Waters In simple terms, the determination of navigability for the purposes of the Commerce Clause of the Constitution is a means of determining public or private ownership of the land of a river to the highwater mark. It is a matter for Federal determination. However it will not finally determine the issue of access where a state chooses to adopt its own definition of navigablility or where a state simply makes a determination as to how water which is publicly owned may be used by the public. The importance of this discussion in the case of Colorado arises out of the fact that to date there has been no final determination of the public's right to use public water for recreational purposes such as rafting and fishing. In such a vacuum, the concept of navigability for the purposes of the Commerce clause has the capacity to at least give some guidance. It is always open to a Colorado Court to make a determination for Colorado purposes and/or for the Legislature to step in and attempt to fill the void. But any legislative attempt to limit access to Colorado waters more than would be permissible under Federal navigability tests would be unconstitutional. The concept of "navigability" is not defined for the purposes of Colorado water resources. Neither the Courts nor the Legislature having attempted to lay down a definition. There are 2 cases where it has been suggested that in dicta observations were made that there are no navigable waters in Colorado [In Re German Ditch & Reservoir Co., 139 P. 2, 9 (Colo. 1913) (en banc); Stockman v. Leddy, 129 P. 220, 222 (Colo. 1912), overruled on other grounds, Denver Ass’n for Retarded Children, Inc. v. School Dist. No. 1 in City and County of Denver, 535 P.2d 200 (Colo. 1975)]. In fact in Stockman v. Leddy [ibid] the court simply made the comment that "(t)he federal government, by its lawmaking and executive bodies, knew that the natural streams of this state are, in fact, non-navigable within its territorial limit s."[ibid]. It is suggested that there is not basis to support this view of the federal government, and in fact it is hard to even ascribe it any weight at all in the context of the decision in Leddy. In the German Ditch case [supra] the statement was made that "... The natural streams of the state are non-navigable within its limits and practically all of them have their sources within its boundaries." [ibid] It is dicta and is more of a throwaway comment than having any substantive value in the decision itself. Therefore it would be a real stretch to ascribe any weight whatever to either of these decisions on the question of the existence or not of navigable waters in Colorado. However the fact that there is no definition for the purposes of the Colorado does not preclude a finding that in fact there are navigable waters for Federal purposes. Determining the navigability of a stream is essentially a matter of deciding if it is public or private property [State v. Korrer, 127 Minn. 60, 148 N.W. 617, sup op 127 Minn. 77, 148 N.W. 1095 (1914) ]. Consequently, first it is necessary to consider the relevance of the Federal law on the subject and then consider whether the State could alter, extend or vary that Federal position. As has already been noted, historically the concept of navigability was tide dependent. This was the position in England where most significant waterways were proximate to the sea and therefore affected by the tides. However after adoption in the US the concept was extended to inland waters which were non-tidal because of the quite different topography of the United States. In a dissenting view in the Kaiser Aetna case [ Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332] Justice Blackmun, writing for the minority, described it thus:
In addition, some states have extended the definition beyond merely interstate commerce and trade to include recreation (e.g California, Arkansas). This will be addressed in the discussion on state definitions. As will be seen shortly, "navigability" is relevant for Federal purposes,inter alia, in determining the jurisdiction of the Corps of Engineers under the Clean Water Act, to establish the limits of federal admiralty jurisdiction, in determining Workers Compensation applicability under the Longshore and Harbor Workers' Compensation Act of 1988 (33 U.S.C.A. §§ 901–950) and to define the boundaries of navigational servitude [ Kaiser Aetna v. United States, 444 U.S. 164, 171, 100 S.Ct. 383, 388, 62 L.Ed.2d 332 (1979)]. Because of the various applications of the definition there is no consistent over-arching view. Consequently, a waterway which is not "navigable" for the purposes of the Commerce Clause might be navigable for the the purposes of 33 CFR 329 [the definition adopted by the Corps of Engineers][see comment of the majority in Rapanos v. United States, 126 S.Ct. 2208 (2006)]. In addition, water which is not navigable under the "ebb and flow" approach might necessarily still be capable of being floated by the public in craft such as rafts and kayaks and still be "navigable" [ See for example Loving v. Alexander, 548 F.Supp. 1079 (W.D.Va. 1982) where logs which had been floated intermittently for a short period of time in shallow water was sufficient to characterize the river as navigable for modern day canoeists, aff'd, 745 F.2d 861 (4th Cir. 1984)]. In admiralty cases there have been a number of incidents where accidents on lakes and rivers have occurred and an attempt has been made to invoke Federal jurisdiction in order to make a tortious claim. In such instances, the waterways have been found to be non-navigable because of the absence of commercial shipping, even though they are obviously navigable for the purposes of the Corps of Engineers jursidiction [e.g. Adams v. Montana Power Company 528 F.2d 437]. In support of that bifurcated approach, the Supreme Court has held that the extension of the judicial power of the United States to 'all cases of admiralty and maritime Jurisdiction,' Const. Art. III, § 2, cl. 1, was independent of the commerce clause [In re Garnett, 141 U.S. 1, 11 S.Ct. 840, 35 L.Ed. 631 (1891); Providence & New York Steamship Co. v. Hill Mfg. Co., 109 U.S. 578, 3 S.Ct. 379, 617, 27 L.Ed. 1038 (1883)]. The way that the courts have attempted to apply a seemingly disfunctional definition is to undertake a functional analysis of "navigability," so that the limits of governmental authority are determined in accordance with the purposes it serves. There is a desire to maximize jurisdiction in cases of clean water. There is a desire to limit jurisdiction in tortious claims where there is an attempt to being a case which ought not to have any relevance at a Federal level under the Federal admiralty jurisdiction. Consequently in controlling a river, the courts has taken the view that once navigable it remains navigable despite obstructions such as dams. However in admiralty cases, where the overarching object is uniform regulation of maritime shipping, where shipping activity has ceased, navigability for that purpose is lost if no other commercial activity persists [Executive Jet Aviation v. City of Cleveland, 409 U.S. 249, 269-70, 93 S.Ct. 493, 504-05, 34 L.Ed.2d 454 (1972), at 261, 93 S.Ct. at 501; Jane O. Livingston v. United States of America, United States Court of Appeals, Eighth Circuit. - 627 F.2d 165 ]. It is interesting to note the fate of the definition adopted by the Corps of Engineers in defining its jurisdiction under the Clean Water Act. The Corps, as is the wont of most bureaucratic organizations, has sought to extend its reach by extending its definition of "navigable waters". However the attempted extension of the definition by the Corps has been challenged successfully on a number of occasions. In Rapanos v. United States , 126 S.Ct. 2208 (2006) the Supreme Court held that the earlier definition of navigable waters adopted in United States v. Eidson , 108 F.3d 1336 (11th Cir. 1997) was no longer good law. However the Supreme Court did not adopt a majority view as to the correct definition leaving a number of alternatives open to adoption. Consequently in the absence of a majority view, the lower courts are bound to follow the narrowest opinion [ ].
Earlier the 2002 SPCC amendments stretched the definition of "navigable waters" almost beyond recognition - defining it as "waters of the United States" including all waters subject to the ebb and flow of tides; prairie potholes; mudflats; impoundments of waters; and waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the CWA. This broad definition was challenged by the petroleum industry and vacated in March 2008 by the U.S. Court of Appeals for the DC Circuit. [American Petroleum Institute (API) v. Johnson, 541 F. Supp. 2d 165, 173 (D.D.C. 2008)]. As a consequence the EPA restored its original 1973 definition of "navigable waters" as follows- 1. All navigable waters of the United States, as defined in judicial decisions before passage of the 1972 Amendments to the CWA and tributaries of such waters, 2. Interstate waters, 3. Intrastate lakes, rivers, and streams that are utilized by interstate travelers for recreation or other purposes, and 4. Intrastate lakes, rivers, and streams from which fish or shellfish are taken and sold in interstate commerce. Under the third paragraph of the definition it is obvious that most rivers and streams in Colorado which are fished by interstate travellers would constitute navigable waters. If that was the operative approach, the entire issue would now be resolved. But of course it is not. As we have noted above, the Supreme Court has recognized that the definition of navigable waters used in one context does not necessarily apply in another [Kaiser Aetna v. United States, 444 U.S. 164, 170-72 (1979)]
Federal Position. The Federal power over navigable waters is a constitutional doctrine which is an extension of the Commerce Clause Article 1, Section 8 of the Constitution [Article I, Section 8, Clause 3:
It is referred to as the doctrine of navigable servitude and protects against claims by citizens under the takings clause [5th Amendment] of the constitution. If a river or waterway is found to be navigable for these purposes, the riparian owner cannot seek compensation for a taking. So for example, if as a result of a change in circumstances such as the raising of a level of a dam, land is covered so that it become part of a navigable waterway, the owner or the land is unable to claim compensation [e.g.Thompson v. Parker, 132 Ark. 316, 200 S.W. 1014 (1917); Arkansas River Rights Committee v. Echubby Lake Hunting Club, 83 Ark. App. 276 (adverse possession)]; As was pointed out in Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332, it had long been settled that Congress has extensive authority over this Nation's waters under the Commerce Clause. The Supreme Court in 1824 had held that the power to regulate commerce necessarily includes power over navigation Gibbons v. Ogden, 9 Wheat. 1, 189, 6 L.Ed. 23 (1824) - concerning the licensing of vessels and in the Supreme Court determined that the navigation of vessels in and out of the ports of the nation is a form of interstate commerce. In Gilman v. Philadelphia, 3 Wall. 713, 724-725, 18 L.Ed. 96 (1866) the court indicated:
Though the ownership of title of land under navigable waters vests in the States the final determination of the question is made in Federal Court. The States ownership thereafter empowers it to exercise considerable authority over those waters. But the exercise of State power must never conflict with Federal law. Federal power is paramount. Given the importance of the question whether there is Federal jurisdiction over a body of water, the key question, therefore is whether it is "navigable". The essence of the determination of "navigability" necessitates an inquiry whether a waterway can be used for commerce or transportation. The definition has evolved modestly but more in relation to the character of the waterway than just on the question of transportation and commerce, simply because "commerce" in particular is not a static concept. As noted earlier, the US position has evolved from the English position which applied to tidal shores, rivers and estuaries (supra). The topographical differences in the US resulted in extensive bodies of inland waters being included in the definition even though they were unaffected by the tides. Lakes and rivers are generally considered capable of being navigable waters [U.S.v Oregon 295 US 1, 1934; Utah v US 403, US 9 1971], but smaller bodies of water may also be navigable. In Kaiser Aetna v. United States, 444 U.S. 164, 100 S. Ct. 383, 62 L. Ed. 2d 332, the minority opinion indicated:
Consequently for our purposes, the position is essentially that "navigable water" subject to federal jurisdiction was defined as including waters that are navigable in fact in The Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 13 L.Ed. 1058 (1852). See also, e. g., The Belfast, 7 Wall. 624, 19 L.Ed. 266 (1869). And in Ex parte Boyer,109 U.S. 629, 3 S.Ct. 434, 27 L.Ed. 1056 (1884), the Supreme Court held that such jurisdiction extended to artificial bodies of water.
That rule was later expanded in The Montello, 87 U.S. 430, 441 (1874).
There is a prospective element in this definiton [ The Daniel Ball (supra); United States v Appalachian Electric Power Co 311 U.S. 377, 61 S.Ct 291, 85 L. Ed. 243 (1940) where the court noted a second way of establishing navigability is suitability for future use with reasonable improvements; and see comments of the Special Master in US v Utah 283 US 63, 1930 in relation to prospective navigation for Utah rivers for commercial tourism]. Although the court broadened the definition of navigable in The Montello (supra), it did place limits on the breadth of that holding, stating: “[i]t is not, however, . . . ‘every small creek in which a fishing skiff or gunning canoe can be made to float at high water which is deemed navigable, but, in order to give it the character of a navigable stream, it must be generally and commonly useful to some purpose of trade or agriculture.’” The Montello, supra, at 442. Furthermore, the Supreme Court has specifically held that, for the purposes of defining Congress's power to regulate under the Commerce Clause, an otherwise navigable river cannot be rendered non-navigable by the construction of artificial dams. [e.g., Economy Light & Power Co. v. United States, 256 U.S. 113, 123 (1921)]. However, there is a necessary nexus between commerce and the water which does require a lot of consideration. Comments have been made in the past to the effect that recreational float fishing is not commerce [George v. Beavark, Inc., 402 F.2d 977 (8th Cir. 1968) - where only non-commercial fisherman, water skiers, and pleasure boaters made use of the river]. In Colorado in Emmerts case the court relied on Harrison v. Fite, 148 F. 781 (8th Cir. 1906), where the court stated at page 783:
There are other examples where on policy grounds a waterway was not found navigable for admiralty purposes even though the same waterway would be navigable for CWA or possible commercial purposes [Adams v Montana Power Co (528 F. 2d 437, 1975) where the 9th Circuit Court of Appeals found tht "neither non-commercial fishing nor pleasue boating nor water skiing constitutes commerce."] In US v Utah ( 283 US 63 1930 ) it was determined that "commerce" included the carriage of people for hire as well as goods. Again this is contrasted with the comments made in The Montello (supra) noted above that it is not just the abiility to float that is key. The waterway must be "generally and commonly useful to some purpose of trade or agriculture". In State v McIlroy (268 Ark 277, 1980) the Arkansas Supreme Court determined that a stream used only for recreational purposes by canoeists and fishermen in flatbottomed boats 18 feet long was navigable. This was a property ownership contest between the State and the riparian owner. McIlroy (id) has been interpreted as determining that in title cases extensive recreational use is sufficient to satisfy the definition of navigability [Arkansas River Right Committtee v Echubby Lake Hunting Club 83 Ark App, 276; 126 S.W. 3d 738 (2003); Alpha Trust v Culothches Bay Navigation Rights Committee, L.L.C. Ark App, CA08-1448 decided May 6th, 2009 - although reversed on other grounds]. McIlroy is interesting on a number of grounds. The Mulberry river was floatable for about 6 months a year. It was used by fishermen, swimmers and canoeists for recreational purposes. So from the outset it was recognized that its only use was for recreational purposes. In determining navigablility the Supreme Court of Arkansas stated the following:
So to some extent the comments of the court in relation to commercial viability though useful in other contexts seem to have little bearing if the sole use of the stream is for recreational purposes. However, if a stream doesn't satisfy the test of being commercially valuable that will foreclose the issue. In Loving v Alexander (supra) the court cited United States v Rio Grande Dam and Irrigation Co 174 U.S. 690, 19 S.Ct 770, 43 L. Ed. 1136 (1899) and commented that "The condition of the watercourse should be such as to ordinarly assure regularity and predictability". In other words, predictability and reliablity are sufficient to imbue the charactistic of commercial value. No-one could serious argue that a commercially successful ski field which does not have snow all year is not commercially viable. Similarly a river which can be floated by rafters or fishermen only 6 months of a year can also be commercially valuable for businesses dependent on their survival for those 6 months a year.
In other words, rather than remaining a relic of the past the definition had to take account of the changes in use which were occurring over time and attempt to accomodate those changes. The Court observed that the prevailing definition in Arkansas was "from the steamboat era" implying that it was time to review it taking account of modern usages. In a useful review of developments in other states it indicated:
Taking these observations into account the Court summed up its decision in these terms:
The conclusion arising from State v McIlroy (supra) and any attempt to reconcile it with George v. Beavark, Inc.(supra) may be found in the fact that the latter case was a Federal admiralty case and the former a state application of the rules to determine "navigability". The distinction between Federal and State definitions will be considered shortly. In Thomson v Dana 52 F 2d @ 763 the McKenzie river was found to be navigable in a case involving the right of a river guide and resort owner to carry fishermen for hire on the MacKenzie above the mouth of the Blue river. It would seem that in today's day and age the substantial contribution to the economy of whitewater rafting and float fishing would certainly be significant enough to constitute certain rivers as being readly characterized as "susceptible of use for purposes of commerce". Therefore although the States have been more prone to expand the definition of "navigability" for their own purposes, there is ample opportunity for the Federal Courts to expand their defintion if they consider that if fits adequately within the purpose of the application of the Commerce clause.
State Positions. As we have noted, to the extent that a Federal Court is addressing its maritime jurisdiction, regulation under the Commerce Clause, and title disputes between the state and federal governments the test is navigation in fact [Hitchings v. Del Rio Woods Recreation & Park District, 55 Cal.App.3d 560, 127 Cal.Rptr. 830 (1976); Day v. Armstrong, 362 P.2d 137 (Wy. 1961)]. Otherwise, the states may adopt their own definitions of navigability [Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820 (1913)]. Various states have adopted definitions of "navigable" which are more expansive than the Federal position. California, for instance, has included non-navigable waters that can affect navigable waters [National Audubon Society v Superior Court 33 Cal 3d 419, 433 (1983) @ 437]. In addition in California, the defintion can include recreational use of a boat [Bohn v Albertson, 107 Cal. App 2d 738, 744 (1951) and National Audubon Society v Superior Court 33 Cal 3d 419, 433 (1983) @ 435 n.17.] In Marks v. Whitney, the California Supreme Court stated that public trust easements have been held to include the right to hunt, fish, bathe, swim, to use the water for boating and general recreational purposes, and to use the bed for anchoring, standing, or other purposes. As we have noted above in relation to the discussion of "navigability" under State v McIlroy (supra) the State of Arkansas was willing to concede that the prevailing defintion was inherited from a "steamboat era" and that the earlier decisions had not taken adequate consideration of the possible future uses to which publicly owned water might be put. In the extracts from other decisions noted above, it is evident that a number of other states had also taken the view that the expansion of the definition to contemplate recreation was an appropriate determination taking account of modern usages and commercial practices. Wyoming and Montana adopted a "use" approach to determining navigability. In Day v Armstrong (supra) the Wyoming Supreme Court drew a distinction between the Federal concept of navigability identifying title and the state approach of determining navigability by reference to use. This same approach was adopted in the Montana Supreme court in Montana Coalition for Stream Access v Curran 210 Mont 38; 682 P. 2d. 163 (1984) where the court cited the Day v Armstrong (supra) approach with approval and adopted the use approach in determining the navigability of Montana waters. The correctness of this decision has been discussed below. In the context of the present discussion, it is suggested that in relation to commercial rafters and commercial float fishing/guiding, it is not necessary to go to the extreme of contemplating recreation as part of the definition of navigability. It is sufficient to only recognize that on a temporal examination of the commercial impact of rafting and floating on a particular river that a commercial activity is present and therefore the Federal definition would apply. It is a further step to determine that recreation is part of the definition and that would require a determination to be made by a particular state that the definition it is adopting for state purposes should be extended in that regard. There is a separate consideration which might arise in some states and that is whether the right to recreation might be more specifically defined as the "right to fish". For instance, if it can be argued that a right to fish is a distinct and separate right from the mere "right to use water" or the "right to recreation" it may be a separate right which might be pursued. This will be discussed shortly.
Colorado Position. Essentially in Colorado, there is no position. Therefore it is a key to the whole area to first have a Colorado adoption either by the legislature or a Court of a particular definition for the purposes of Colorado and thereafter explore the implications. It has been suggested in two cases that there are no navigable waters in Colorado. The observations were dicta, and therefore not binding. [In Re German Ditch & Reservoir Co., 139 P. 2, 9 (Colo. 1913) (en banc). See also Stockman v. Leddy, 129 P. 220, 222 (Colo. 1912), overruled on other grounds, Denver Ass’n for Retarded Children, Inc. v. School Dist. No. 1 in City and County of Denver, 535 P.2d 200 (Colo. 1975). However it is respectfully suggested that this view is obviously wrong given the extent of rafting and floating which takes place commercially within Colorado. If the dominant determination is "navigability in fact" the Colorado cannot override that by imposing a more restrictive definition intending to exclude all waters from Federal navigable servitude [United States v. Twin City Power Co. , 350 U.S. 222, 76 S.Ct. 259, 100 L.Ed. 240 (1956)]:
The whole point of the characterization of navigable servitude as a power is that it renders it the paramount power under the Commerce clause and therefore limits the ability of a state to enact a competing or conflicting law. Suffice to say that for the purposes of the present discussion it it obvious that some rivers in Colorado are navigable and it is just a matter of time before a court makes this decision. Even if the Colorado Legislature should attempt to foreclose the issue by legislating a restrictive definition of navigability, it will be of no effect if the Federal tests of navigability determine that certain waters are navigable in Colorado. It is also open to a Colorado court to determine that if the "use" test adopted in both Wyoming and Montana is relevant that those waters which are in fact used by the public are navigable for the purposes of the state law. However this depends on a court actually adopting this approach. At this point we are taking the very basic proposition that there are some waters which satisfy the Federal test regardless of what the state courts or Legislature attempts. The "use" test proceeded from the constitutional right for the public to "use" the water. In Colorado the constitutional right has been limited to the right to "use" water at the point of appropriation. [see discussion further here]. Rather than the questionable view of the majority in Emert's case in restricting the meaning of "use" the decision of Harnsberger J delivering the opinion of the Supreme Court of Wyoming was quite simple and straightforward:
In Curran's case [supra], the Montana Supreme Court adopted a similar approach.
Their ultimate finding was succinct:
The problem with the Curran decision [supra] is that it involves fairly sloppy reasoning. First the public trust doctrine is well defined Federally. There is no notion of recreational use as a consideration in the Federal test. Therefore implying that the public trust doctrine does contemplate recreational use is not accurate. It is open to the Court to propound a new test for the state which is in fact what they have done. But it is not correct to say that the decision was derived from a strict application of Federal authorities. Therefore if there was not an accurate attempt to apply the Federal navigability test, the matter should have been considered solely by reference to the Montana constitution. On this basis, the consideration would have limited itself to the use of the water and the incidents of that use. This was the approach adopted in Day v Armstrong [supra] and respectfully it was more correct. Day v Armstrong [supra] limited the use of the water to floating and incidents of floating. Curran [supra] extended the use of water beyond that and then adopted a misreading of the public trust doctrine to include the right to wade fish to the high water mark. The confused approach and the fact that is was not simply applying Federal law was underlined by the dissent of Gulbrandson J who characterized the majority decision as judicial legislation. The majority by suggesting that they were granting the right to wade fish on such waters were going beyond the natural incidents of floating. The consequence was to encumber the title of the landowner with a new test of recreational use for water which went beyond the water itself and affected the riparian land. As an interesting aside, it is pointed out that on January 17th 2009, the Nevada Legislature declared that the Colorado River was navigable and as a consequence title to lands below high water mark were held by the State. Essentially the declaration was that all of the Colorado River within the State of Nevada, from the Arizona line on the north to the California line on the south, was declared to be a navigable stream for purposes of fixing ownership of the banks and bed thereof, and title to the lands below the high water mark thereof is held by the State of Nevada, insofar as they lie within the State. [1:97:1921; NCL § 1425] - Jan 17, 2009 next - Ownership of Water in Colorado 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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