From the Gunnison Country Times:
The debate over whether there’s actually a “right to float” in Colorado played out locally before. In a high-profile case a few years ago, an outfitter who had historically boated the Lake Fork of the Gunnison River was sued for civil trespass, for floating through private land. The company, Cannibal Outdoors, ultimately went out of business amidst the litigation.
The case was settled out of court, so the matter never became part of case law. The question of whether landowners have grounds for such civil suits has lingered in the minds of proponents of the state’s $142 million river running industry ever since. It’s widely recognized that current law protects boaters from a criminal charge if they don’t touch bottom while floating through private property. Likewise, it’s long been held that property owners of parcels through which rivers and streams flow own the underlying stream bed. “Both sides definitely have enough information to create their own philosophies about what these laws say,” said Bob Hamel, chairman of the Colorado River Outfitters Association and owner of Arkansas River Tours in Cotopaxi.
Local water attorney John Hill represented the landowners in the case on the Lake Fork, and has staunchly argued that there is no right to float in Colorado. He believes that landowners have the legal right to control access to waterways because they own the underlying streambed.
“We don’t think that’s the way it is or should be,” countered Hamel. “We’re trying to protect an industry. We’re being pushed.”
Hill, whose firm is currently representing the landowner on the Taylor River who is attempting to bar access by commercial outfitters, said that Curry’s bill is unconstitutional. Allowing commercial boaters to portage, he argued, is a “taking” with no prospect for just compensation. “This is a physical invasion taking,” he explained. “It’s authorizing people to go on private property.”[…]
Jackson Shaw, a Texas-based real estate development company, purchased what has historically been called the Wapiti Ranch, six miles up the Taylor Canyon from Almont, for $20.5 million in late summer 2007. The approximately 2,000-acre hay meadow down-river of Harmel’s Resort is now the site of a subdivision development called Wilder on the Taylor. Company CEO Lewis Shaw II is a part-time resident of the nearby Crystal Creek community along the Taylor River. Historically, Scenic River Tours and Three Rivers Outfitting have guided float trips through the section of river that flows through the new development, without cause for alarm from the previous owner. That’s changed since Jackson Shaw became the new owners. Lewis Shaw has informed the two local outfitters that they won’t be allowed to continue floating the section of river that flows through the development, threatening legal action if they don’t abide. Wilder on the Taylor is what Hill’s partner and longtime local water attorney Dick Bratton called a “recreational fishing subdivision.” Jackson Shaw has conducted improvements on the property, and in the river, to improve the fishing, he said. Similarly, the Cannibal case was over the same competing interests. The landowners maintained a fishing lease on the section of water in question, with which they believed the frequent commercial raft trips interfered. “If this guy had owned this river in his family for the last hundred years I would feel somewhat differently,” Mark Schumacher, owner of Three Rivers, said of Lewis Shaw. “But he bought the property to make it a fishing (subdivision) and he knew that people floated through it. We just don’t want anything taken away that we’ve been doing for 20 years.”[…]
Curry plans to introduce the bill — which, she said, she agreed to carry for the two local outfitters — in coming weeks. She expects a constitutional challenge of the bill, should it be written into law, but views it as necessary for protecting commercial rafting in Colorado. Bratton, on the other hand, calls the proposal a “special interest” bill, because it would only protect two companies on a two-mile stretch of one river…
“In Colorado, it’s almost impossible to float a river without touching something,” said Curry. “The statute does not realistically address normal boating conditions in this state.”
More coverage from the Fort Collins Coloradoan (Bobby Magill):
Though the controversies sparking the bill originate along the Taylor River in Gunnison County, the bill could impact all commercially navigable rivers statewide, including the Poudre. “The need is, somebody who owns property could stop you from floating,” said one of the bill’s chief proponents, David Costlow of Rocky Mountain Adventures in Fort Collins. “There are a number of businesses that could be shut down.”
The bill, the River Rafting Jobs Protection Act, would allow commercial river outfitters to float on waterways that have historically been used for float trips. The bill would prevent the outfitters from being liable for criminal or civil trespass as long as they access the waterway via a public right of way.
Rafters would also be given the right to make “incidental” contact with the riverbank or the riverbed and a similar right to portaging, all of which today may lead to a trespassing charge. “The gist of the bill is that they cannot block the river and cannot deny the right of commercial outfitters to pass through,” Curry said Monday.
More 2010 Colorado legislation coverage here.
