The right to float in Colorado - The right to portage

The legalities of floating on Colorado Waters

Portage.

The right to portage, or carrying or walking a craft around and obstruction can be addressed in 2 ways. The first is in the case of "navigable waters. The second is in the case of other waters over which the public has an easement even though the water is not considered navigable.

Navigable Waters.

Where the river is navigable the public owns or has an easement over the waterway to the highwater mark and can therefore portage around the obstruction. The right of portage, 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.

An incidental 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.)].

As there has been no determination in Colorado concerning the appropriate test for "navigability" this approach though with merit, has little application prior to the necessary determination.

Non-navigable waters.

If the public has a right to float down a river fishing or paddling, the right is in the nature of an easement. In order for the public to fully enjoy its easement there will be a number of incidental rights which will also be exercisable. For instance, a touching or scraping of the bottom of the river which is incidental to the process of travelling would be a natural incident. In addition, if the flow became too shallow it would be a natural incident to be able to disembark from the craft and push through the riffle or shallow waters. The question is how far do incidental rights extend?

The Supreme Court of Utah recently decided the point in Conatser v. Johnson Supreme Court of Utah July 18, 2008 2008 WL 2776716 (Utah 2008). The Conasters sought a declaration from the district court that the public had the right to enjoy a number of incidents to the public right to float and fish. The District Court limited the rights to "being upon the water" and touching the privately owned bed of the river only as an incident "to the right of floatation upon" the water.

The Supreme Court reversed the lower court finding that the public had the right to "engage in all recretational activities that utilize the water" and to "touch privately owned beds of state waters in ways incidental to all recreational rights provided for in the easement."

In Utah, in the case of navigable waters the public owns the bed of the river [ ibid @ 4, Monroe v State 175 P 2d 759, 761 (Utah 1946) (quoting Harrison v Fite, 1248 F. 781, 784 98th Cir. 1906)]. But in the case of non-navigable waters, the public still has the easement to enjoy the water regardless of the ownership of the bottom of the river [ibid, J.J.N.P. 655 P2d at 1137; Day v Armstrong 362 P.2d 137 (Wyo. 1961)].

Essentially the Supreme Court decided that the public had the right to "utilize" the water and therefore that carried with it the right to undertake activities incidental to that right. This included the right to walk/wade while fishing because that was "utilizing" the water. Provided the walk/wading was not intrusive and was incidental to the utilization of the water it was legal.

The usefulness of the decision is found in the finding by the lower court that even if a more restrictive view is taken of the public's right to enjoy the water and the right is limited to floating upon the water, it is a natural incident of that use that a craft may at some point have to be carried around an obstruction. Even on this narrow view, the lower court decided that it was not a trespass to quickly alight from the craft and walk around the obstruction where the walking is a necessary incident to permit the public to continue to float. The lower court came to this view relying on the Wyoming decision in Day v Armstrong 362 P.2d 137 (Wyo. 1961).

In Day v Armstrong [ibid] the Wyoming Supreme court made the observation that it was a natural incident of the right to float to be able to alight from a craft and drag it over or around obstructions.

"When waters are able to float craft, they may be so used. When so floating craft, as a necessary incident to that use, the bed or channel of the waters may be unavoidably scraped or touched by the grounding of craft. Even a right to disembark and pull, push or carry over shoals, riffles and rapids accompanies this right of flotation as a necessary incident to the full enjoyment of the public's easement. [ibid].

In Curran's case [Montana Coalition for Stream Access v Curran 210 Mont, 38; 682 P. 2d. 163 (1984)], the Montana Supreme Court adopted a similar approach. After finding that the public trust docrine and the 1972 Montana Constitution permitted recreational use of any surface waters that are capable of recreational use may be so use without regard to streambed ownership or navigability for non-recreational purposes, the court indicated:

"The the public's right to use the State-owned waters is restricted to the area between the high water marks and may only cross private property in order to portage around barriers in the water' the right to portage must be accomplished in the least intrusive manner possible." [ibid].

It is therefore suggested that in Colorado, given that the public owns the water in rivers and streams and has the right to enjoy that water ,inter alia, by floating that it is a natural incident of the right to float to be able to portage around an obstruction. This is without regard to the question whether the particular river is considered "navigable" or not. Whether a Colorado Court will take the wider view adopted by the Utah Supreme Court remains to be seen.

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.

next - Deliberate Obstructions.

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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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