Legal comments on Floating Colorado Waters

The legalities of floating on Colorado Waters

One of the pressing questions in attempting to float on Colorado rivers are the laws of trespass.

The position is actually not clear. There is a generally understanding of the Colorado State position but the degree to which it is enmeshed in and subject to Federal law renders it more problematic than most people appreciate.

The general perception in Colorado is as follows:

1. A titled landowner owns all of the land from the bank to the land under the river.

2. The water is public and cannot be owned by the landowner.

3. Provided a raft or craft floats over the river without touching the sides or the bottom of the river there is no violation.

4. If a raft or boat is brought to rest by touching the bank or the bottom of the river either itself or by means of a rope or anchor, that constitutes a trespass.

5. If a person leaves a raft or boat for whatever reason and touches the bottom or the bank that is a trespass.

6. A craft may remain stationary in an eddy for as long as it may provided it does not touch the bottom or the bank.

This is the general view on the law and is the advisable approach to take.

However, it is not in fact correct. The Colorado view has emanated from a decision in the Emmert case in 1976 which was badly argued by Mr Emmert who represented himself. The court ruled that the landowner owns from the bottom of the river to the sky and therefore anyone floating over the top of the property was trespassing.

As a consequence of the decision at first instance in 1977 the Colorado State legislature enacted a redefinition of "premises" to include the bank and bottom of a river but not the surface water. The intent of this legislative amendment was to ensure that anyone floating over the top was not trespassing.

In 1983 the Colorado State Attorney General issued a memorandum explaining the amendment. The opinion said, “one who floats upon the waters of a river or stream over or through private property, without touching the stream banks or beds, does not commit a criminal trespass.” (AG Alpha No. NR AD AGALA, 1983.)

That is therefore the general understanding of Colorado land law.

However the problem is that it takes no account of Federal law which has protected the right to travel and conduct commerce over navigable waters. Superficially, one might conclude that the two positions are consistent. However they are not.

Take for instance, a fisherman floating down a river who meets an obstruction. Under the general impression of Colorado law, if the fisherman gets out of his boat and portages around the obstruction, as soon as he touches the ground he is trespassing.

Similarly, suppose that a farmer owning both sides of a river strings a barbed wire strand across the river so low that it prevents a craft floating safely through. Any alighting from the craft to portage around it constitutes a trespass.

However neither position is correct. It is important to be aware of the legal position for one's own safety and also in the event that a landowner or law officer confronts someone avoiding danger and charges them with trespass.

Several introductory remarks are apt.

1. Federal law takes precedence over state law. So where there is a conflict between the 2 the Federal law will prevail.

2. The right to travel and conduct commerce on navigable waters has persisted since time immemorial and has since been adopted as the Federal position and therefore any attempt by a state to limit it will be of no effect.

3. Much turns of the question of "navigability" of a river and therefore that concept is worth considering in detail. A comment will be made shortly. However at this point for the purposes of this commentary, given that a raft or boat is able to travel on a river, presupposes that it is navigable.

Public Trust Doctrine.

The examination of the area begins with an understanding of the Public Trust Doctrine. It has been suggested by a number of writers and judged that since Roman times it has been accepted that certain resources belong to the public and are not alienable. It has also been suggested that this was subsequently the position in the English Common law and later adopted in the United States.

The history of the Public Trust Doctrine in the US is a little murky because it is arguable that the original decisions were not actually reflective of the English precedents. However, be that as it may, one of the high water marks of the US position is found in Arnold v Mundy [6 N.J.L 1(Sup Ct 1821)] wherein the plaintiff claimed an exclusive right to an oyster bed which he tended. His title was traced back to a grant from Charles II, King of England, in 1664 and 1674. The defendant claimed the right to take oysters from the bed to the high water mark as part of the navigable waters of the Rariton River. Essentially Kirkpatrick, writing for the majority found that the land covered by navigable waters to the high water mark, were not capable of being exclusively alienated to an individual.

There is reasonable doubt as the the correctness of Kirkpatrick's reasoning and in fact it was actually overturned some eight years later [Gough v Bell 22 N.J.L. 441 (Sup Ct 1850)], yet the observations have become part of the precedent proscribing the notion of public trust law in the United States. Justice Kirkpatrick summed up his position in the following language:

"Upon the whole, therefore, I am of opinion, as I was at the trial, that by the law of nature, which is the only true foundation of all the social rights; that by the civil law, which formerly governed almost the whole civilized world, and which is still the foundation of the polity of almost every nation in Europe, that by the common law of England, of which our ancestors boasted, and to which it were well if we ourselves paid a more sacred regard, I say I am of opinion, that by all these, the navigable rivers in which the tide ebbs and flow, the ports, the bays, the coasts of the sea, including both the water and the land under the water, for the purpose of passing and repassing, navigation, fishing, fowling, sustenance, and all the other uses of the water and its products (a few things excepted) are common to all the citizens, and that each has a right to use them according to his necessities, subject only to the law which regulate that use ... [ibid @52]"

A careful reading of the decision will note the reference to the sea and tidal waters. However subsequent decision in the US have extended that to navigable waters which are not tidal in nature. It was therefore a short step to take the view that any waterway which satisfied a definition of "navigability" was susceptible to the claim of inalienability under the public trust doctrine.

Part of the debate over the correctness of the doctrine is whether it prevents alienation of proscribed property in the first place, or whether it should be read as merely preventing the alienation of the property exclusively. In other words, property can be alienated subject to the public right to enjoy it in a proscribed manner and subject to regulation. The subtlety of the distinction, though interesting to legal scholars is not important now that a century of cases has permitted the doctrine to evolve wherein it actually is interpreted as a prohibition on alienation totally.

It follows that as presently understood the public cannot now be prevented from having reasonable access to certain resources.

Navigable Waters

The concept of "navigability" is not clear as different states have adopted different definitions and in fact in Colorado there is at this point no specifically adopted definition. 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. In due course it is intended to add some detailed analysis of the definition to this paper when enough work had been done to make the exercise meaningful.

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.

The Federal power over navigable waters follows as a constitutional doctrine which is an extension of the Commerce Clause Article 1, Section 8 of the Constitution. 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.

A further important point to note is that the concept of "navigable waters" in the traditional sense is not an exhaustive determinant of the public's right to float over shallow waters. In other words, the concept of "navigability" has already been extended from the traditional understanding first by applying it to inland waterways. In addition, the notion that it is limited to just transportation and commerce has also been taken as too limited in some US states to the point where public recreation has been adopted as part of the definition [e.g. California and Montana].

So that a waterway which is not "navigable" for the purposes of 33 CFR 329 [the definition adopted by the Corps of Engineers] might necessarily still be capable of being floated by the public in craft such as rafts and kayaks and still be "navigable". This is the case in much water which is floated by fishermen in rafts. See for example Loving v. Alexander, 548 F.Supp. 1079 (W.D.Va. 1982), aff'd, 745 F.2d 861 (4th Cir. 1984); Goodman v. City of Crystal River, 669 F.Supp. 394 (M.D.Fla. 1987) and Atlanta School of Kayaking v. Douglasville County Water, 981 F.Supp. 1469 (N.D.Ga. 1997).

Portage.

The right of portage, or carrying a craft around an obstruction is part and parcel of the right to use a river for travel and commerce. Consequently, if a craft is on a navigable stretch of water and needs to be carried around an obstruction to the next navigable section, that right is a public right and is not variable by State legislation. [e.g. Economy Light & Power Co. v. United States, 256 U.S. 113 (1921); see also Economy Light & Power Co. v. United States, 256 U.S. 113 (1921.)].

It follows therefore, that the public floating down a river reaching an obstruction has a right to be able to portage around the obstruction without committing a trespass.

The fact that the 1977 Colorado statute confirmed the landowners right to ownership of the bank and river bottom does not of itself eliminate the right to portage which emanates from Federal Law.

One question in this context is whether the existence of an obstruction giving rise to the need to portage prevents river from being navigable in the first place. The answer to that is no. There are a number of Federal cases which consider rivers boatable even though they were only intermittently capable of being floated.[e.g The Montello, 87 U.S. 430 (1874.)]

Deliberate obstructions.

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.

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.

It would also follow that a waterway is floatable even though there is the possibility of the craft being momentarily grounded on a sandbar or obstruction. The existence of that obstruction does not render the water unfloatable and does not result in the grounded rafter being liable for trespass.

Summary

The summary position is therefore as follows:

1. In time there will be a determination in Colorado that certain waters are "navigable".

2. Once that determination is made the public will have access to the water and the adjoining land up to the high water mark.

3. It will not be possible for the Colorado Legislature constitutionally to alienate that land exclusively to any individual landowner.

4. Individual landowners will not be able to prevent the public using the water and the land to the high water mark.

Therefore the current approach in Colorado is wrong but is the approach adopted by a lot of landowners and some law enforcement officers.

The resolution of this will be found in a court case which will necessarily have to be brought between a landowner and a person who has standing and wants to go onto the bed of a navigable river to the high water mark. It is just a matter of time but it will happen.

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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